NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Civil action commenced in the Superior Court Department on December 9, 2005.

The case was heard by John S. McCann, J.

Howard P. Speicher for Roland M. Michaud.

Gerald M. Moody for the plaintiffs.

MILLS, J. The plaintiffs, Raymond and Marcia Cornell (collectively, the Cornells), reside in their home at the edge of Harris Pond in Blackstone. The defendant Roland M. Michaud (Roland)3 purportedly obtained a building permit for and began construction of a large single family home on his adjacent land. A Superior Court judge, on the Cornells’ complaint pursuant to G. L. c. 40A, § 17 (zoning appeal), and G. L. c. 249, § 5 (mandamus), ordered that the house be removed and the land be restored to its condition prior to the construction. Roland appeals. We affirm.

1. The land. Prior to the adoption of zoning in the town of Blackstone (town), land at the edge of Harris Pond was divided into lots, and Edgewater Drive was created to provide some access to some of the lots. This case concerns land that was historically lots 33, 47, 48, and 49,4 as shown on the sketch plan (plan) adapted from a trial exhibit and attached as an Appendix to this opinion. Lots 33, 47, and 48 remained separate lots until 1986, when the three lots were reconfigured into two lots. The land area that was lot 48 (historic lot 48), which no longer exists as a separate lot, is nonetheless the principal concern of this appeal.

Historic lot 48 was conveyed to Roland on June 21, 1985. At that time, the lot contained a modest structure, once used as a residence but abandoned for several years. On May 20, 1985, Roland and his wife, Suzanne, conveyed lot 33 to Roland’s father, also Roland Michaud (father). The father held title until 1990 when he reconveyed the land to Roland and Suzanne.5

On May 16, 1986, an application for variance relief was filed with the zoning board of appeals (board) of the town of Blackstone seeking to reconfigure three lots, 33, 47 and 48, into two separate lots. The application referred to “premises located on Edgewater Drive,” without reference to lot numbers. The application document was filled out by Roland, although his father was the nominal applicant and actually signed it. Variance relief was requested “to . . . realign what is currently three lots with two blding [sic] to two lots with two single family residences.” At that time historic lot 48 still contained the small abandoned building, lot 47 contained a capped foundation, and lot 33 was vacant. As of the date of the variance application, the record holders of title were as follows: lot 33, the father; lot 47, Roland and Suzanne; and lot 48, Roland.

The board granted the variance on June 11, 1986, allowing the reconfiguration of three lots into two buildable lots, subject to a condition that the abandoned building on historic lot 48 be removed. That building was not removed. The variance was not recorded. However, Roland completed construction of, and sold a house on, historic lot 47. He also built a two-family home (not a permitted use, with no zoning exemption) on historic lot 33.

On May 20, 1987, Roland purported to convey historic lot 48 as a separate lot to his brother, Ernest E. Michaud. In 1990, Ernest conveyed this lot to his nephew, Norman W. Michaud. Norman is the son of Roland.

2. The 2000 Superior Court judgment. In a related case, the Superior Court entered a final judgment in 2000 that conclusively determined, as to the parties to this case, that historic lot 48 is not a buildable lot. In that case, the town’s building inspector6 issued a permit for construction on historic lot 48 in February, 1995. Less than a month later, he rescinded the permit on the stated ground that the abandoned building had not been removed as required by the 1986 variance.

Norman applied to the board for a special permit on May 10, 1996, seeking to construct a single-family residence, or an addition to the existing building, on historic lot 48. The board denied the request on the grounds that the building was not a dwelling,7 and that historic lot 48 was nonconforming, that is, not a buildable lot pursuant to State law and the by-law.

Norman appealed to Superior Court. On October 30, 2000, a judge affirmed the board’s denial of the special permit. The judge further found and ruled that (1) Roland had participated in the application and obtaining of the variance, he relied upon its terms in constructing two homes (one in violation of the zoning by-laws), and he and his successors were estopped from denying the terms or the existence of the variance; (2) historic lots 47 and 48 had merged, for zoning purposes, and neither the by-law nor State law permitted Roland to tear down the offending building on historic lot 48 and build another structure; (3) the prior nonconforming use of historic lot 48 had been abandoned, and all future use must comply with the by-law; and (4) Norman’s requested use of historic lot 48 did not conform with the by-law. While Norman filed a notice of appeal from this judgment, he did not perfect the appeal. Therefore, this judgment became final as matter of law.

3. The 2008 Superior Court judgment. In the spring of 2005, the Cornells observed that construction of a large structure had begun on adjacent land, historic lot 48. The Cornells inquired with the office of defendant Gerald D. Rivet (Rivet), the current town building inspector, about the propriety of this construction. Rivet refused to see the Cornells, and his office dispensed conflicting information about the existence of the permit. At some point during April, 2005, a representative of Rivet’s office showed the Cornells a building permit purportedly issued to Roland on February 25, 2005. The representative also showed the Cornells an “agreement between the parties,” also dated February 25, 2005, in which Roland, Norman, and Rivet purported to agree, with no reference to the 2000 Superior Court judgment to the contrary, that historic lot 48 was eligible for a building permit.8

Attempting to reconcile the purported permit and the “agreement” with the 2000 Superior Court judgment, the Cornells attended a meeting of the town’s board of selectmen in early May, 2005. At the meeting, the Cornells inquired about the permit and the construction and brought a copy of the 2000 Superior Court decision to the attention of the selectmen. The selectmen apparently referred the matter to the town administrator, who responded in a letter dated May 4, 2005. The administrator wrote that the construction was proper and included copies of the permit and the “agreement.”

The Cornells, through counsel, replied to the town administrator on June 17, 2005, with a copy of the reply directed to Rivet. Their reply noted that, by virtue of the 2000 Superior Court judgment, the by-law and applicable State law did not allow the inspector to issue a permit for demolition and new construction on that land, historic lot 48. Neither the administrator nor Rivet replied. On August 15, 2005, the Cornells’ lawyer filed a formal enforcement request with Rivet pursuant to G. L. c. 40A, § 7. When Rivet again failed to respond, the Cornells appealed Rivet’s non-action to the board pursuant to G. L. c. 40A, §§ 8 and 15, on August 31, 2005. The board heard the appeal, without any argument by Roland as to jurisdiction or timeliness, and denied it on November 23, 2005.

The Cornells filed this action in Superior Court under G. L. c. 40A, § 17, and G. L. c. 249, § 5. On July 21, 2008, after a bench trial, the judge ruled that the 2000 Superior Court judgment conclusively determined that historic lot 48 is not a separate, buildable lot and that Rivet could not issue the subject permit. The judge further ruled that the 2000 Superior Court judgment collaterally estopped Roland from relitigating the issue of pre-existing nonconforming use. The judge ordered Rivet to revoke any outstanding building permits issued in relation to historic lot 48, ordered Rivet to take any and all action necessary to cause the removal of the new residential structure on historic lot 48, and ordered Roland to remove any and all structures and restore historic lot 48, as nearly as possible, to its undeveloped state.

Roland now appeals the 2008 judgment, arguing (1) the board and the Superior Court lacked jurisdiction because the Cornells did not timely appeal to the board from the purported issuance of the building permit, (2) the judge committed clear error in determining that the Cornells had standing to seek judicial review, (3) laches bars the Cornells from seeking equitable relief, and (4) the judge erroneously ordered Roland to restore historic lot 48 to its preconstruction condition without determining whether, in its current state, historic lot 48 could support a permissible use.

4. Timeliness of the appeal. Roland argues, for the first time on appeal and relying principally on Gallivan v. Board of Appeals of Wellesley, 71 Mass. App. Ct. 850 (2008), that the Superior Court lacked jurisdiction to hear the Cornells’ complaint. Roland argues that the Cornells did not adhere to the thirty-day time limit at issue in Gallivan, G. L. c. 40A, §§ 8, 15 (thirty-day remedy), that he argues should be applicable to the zoning component of the Cornells’ complaint. Roland acknowledges that a person seeking to bring an enforcement action has six years to do so, G. L. c. 40A, § 7 (six-year remedy), but argues that, because the Cornells had a “fair opportunity to appeal from the issuance of [Roland’s] permit,” within thirty days, they were limited to the thirty-day remedy and excluded from the six-year remedy. Gallivan, supra at 855.

We conclude that Gallivan does not apply here to restrict the Cornells to the thirty-day remedy.9 The purported “agreement between the parties” was void ab initio. Because the permit was premised on the provision in the void “agreement” that historic lot 48 was buildable, the 2000 Superior Court judgment that historic lot 48 was not buildable controlled, and the purported permit issued in contravention of that judgment was also void ab initio. Because the permit was void, it was not an “order or decision” within the meaning of G. L. c. 40A, § 8, and no appeal to the board was required within thirty days of the Cornells’ acquiring notice of the purported permit.10 The Cornells, unconstrained by Gallivan, timely sought zoning enforcement, see G. L. c. 40A, § 7, and timely appealed, see G. L. c. 40A, §§ 8, 15, 17; Hogan v. Hayes, 19 Mass. App. Ct. 399, 402-403 (1985). The board and the Superior Court therefore had the authority to entertain the Cornells’ claims.

The “agreement” was void ab initio. A municipal official, Rivet, purported to abrogate a final judgment of the Superior Court by clandestine agreement with parties bound to it.11 Nothing in the by-law or the zoning act gives Rivet the authority to enter into such an “agreement.” Accordingly, this “agreement,” made in excess of Rivet’s authority and in contravention both of a binding Superior Court judgment and the by-law, “was void from its inception.” Boston v. Back Bay Cultural Assn., Inc., 418 Mass. 175, 184 (1994).

Because the “agreement” had no force or effect, the 2000 Superior Court judgment remained the definitive, binding statement of historic lot 48’s legal status. That judgment conclusively determined that (1) historic lot 48’s prior non-conforming use had been abandoned, (2) it was not a buildable lot, and (3) it was ineligible for a building permit. Rivet had no power, from the Zoning Act or elsewhere, to contravene, indeed, blatantly defy, this binding final Superior Court judgment.12 Accordingly, the purported issuance of a building permit which that judgment renders impermissible was a nullity.13 See D’Errico v. Board of Assessors of Woburn, 384 Mass. 301, 307-308 (1981) and cases cited (municipal act that is “illegal and void” is an “unenforceable nullity”).

Because the permit was an unenforceable nullity, it was not a valid “order or decision.” See G. L. c. 40A, § 8. The Cornells, accordingly, did not have to appeal within thirty days of acquiring notice of this void permit.14 Contrast Gallivan, supra at 858-859 (routine, orderly, and transparent municipal process resulted in the issuance of a valid building permit, and notice of the permit was mailed and published according to express notice provisions of the Wellesley by-law).

Unconstrained by the thirty-day remedy, the Cornells properly resorted to the six-year remedy in G. L. c. 40A, § 7. By making written demand upon Rivet to enforce the by-law in June, 2005,15 and again in August, 2005, the Cornells timely sought enforcement. Although Rivet did not respond to these enforcement requests, Roland has waived the argument that the absence of a response by Rivet precludes this appeal to the board. See, e.g., Hogan, supra.

The board therefore had the authority to consider the propriety of Rivet’s failure to enforce the by-law. When the board denied the Cornells’ appeal, they timely sought judicial review in Superior Court. See G. L. c. 40A, § 17. Accordingly, it was proper for the Superior Court to hear this case.

5. Standing. Roland next complains that the judge committed clear error in finding that the Cornells presented credible evidence sufficient to establish their standing to seek judicial review. We agree with the judge.

For purposes of the zoning act, only a “person aggrieved” may seek judicial review. G. L. c. 40A, § 17. In order to qualify as a “person aggrieved,” one must assert “a plausible claim of a definite violation of a private right, a private property interest, or a private legal interest.” Harvard Square Defense Fund, Inc. v. Planning Bd. of Cambridge, 27 Mass. App. Ct. 491, 493 (1989).

We will not set aside a judge’s determination, made after an evidentiary hearing or trial, that a party is a “person[] aggrieved” under the zoning act unless “clearly erroneous.” Marashlian v. Zoning Bd. of Appeals of Newburyport, 421 Mass. 719, 720, 722 (1996). The judge determined that the Cornells were so aggrieved. Because the record contains ample evidence to support this determination, including photographs of the intrusive construction on historic lot 48 and the undisputed fact that the proposed structure increases the existing dimensional nonconformity on historic lot 48,16 the judge’s determination was not clearly erroneous.

6. Laches. Roland argues that the affirmative defense of laches applies to bar the Cornells’ claims for equitable relief. This argument fails.

“Laches is an unjustified, unreasonable, and prejudicial delay in raising a claim. . . . Laches is not mere delay but delay that works disadvantage to another.” Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 531 (2008) (quotations and citations omitted). “The operation of laches generally is a question of fact for the judge, and a judge’s finding as to laches will not be overturned unless clearly erroneous.” A.W. Chesterton Co. v. Massachusetts Insurers Insolvency Fund, 445 Mass. 502, 517 (2005).

Here, the secretive and bizarre manner by which Rivet issued this purported building permit justified and made reasonable the resulting mild delay in the Cornells’ raising of a claim. Moreover, Roland cannot claim disadvantage resulting from the delay. The record firmly established Roland’s awareness of the 2000 Superior Court judgment, so any purported reliance on a building permit issued in contravention of that judgment is wholly unreasonable. The judge properly ruled that laches did not apply.

7. Remedy. Finally, Roland argues that the judge inappropriately ordered the “extreme remedy” of restoring historic lot 48 to the status quo ante the construction without first considering if the structure could conform to a legal use. The judge’s order was correct.

If a landowner can modify an incomplete structure or seek an appropriate variance or permit so as to bring the property into compliance with a zoning by-law, court-ordered demolition is an inappropriate remedy. Building Inspector of Falmouth v. Haddad, 369 Mass. 452, 459 (1976). However, where a landowner builds despite notice of a nonconformity and adverse judicial action, the landowner acts at his own peril and cannot protest an order to restore the land to its preconstruction state. See Wells v. Zoning Bd. of Appeals of Billerica, 68 Mass. App. Ct. 726, 737 & n.18 (2007)

Here, Roland, Rivet, and the board all had ample notice of the tortured history of historic lot 48, including proceedings before the board, opinions from town counsel, and the 2000 Superior Court final judgment. We agree with the judge that Roland’s lengthy and intimate involvement in this case throughout adverse judicial action makes plain that he appreciated the risks of the unlawful construction and proceeded anyway. As a result, Roland acted at his own peril, and he cannot request an opportunity to cure the nonconformity of his use which he did not cure prior to beginning construction. The judge therefore properly issued orders to Roland and Rivet that all structures be removed from historic lot 48 and the land restored to its undeveloped state.

8. Conclusion. We have no occasion to disturb the judge’s order for final judgment that ordered defendant Rivet to revoke any outstanding building permits issued in relation to historic lot 48, ordered defendant Rivet to take any and all action necessary to cause the removal of the new residential structure on historic lot 48, and ordered Roland to remove any and all structures and restore historic lot 48, as nearly as possible, to its undeveloped state.

2Zoning board of appeals of the town of Blackstone and Gerald D. Rivet, in his official capacity as building inspector for the town of Blackstone.

3For ease of reference, after initial identification, we refer to the several Michauds in this case by their first names.

4For all times relevant to this appeal, the Cornells have owned and lived in their home on lot 49.

5Unchallenged was the judge’s finding that during the pertinent periods of time in question, there were two parcels owned by Roland, or Roland and his wife, Suzanne, identified as contiguous lots 47 and 33 on the plan.

6The predecessor of defendant Gerald D. Rivet. Rivet testified that he became building inspector in December, 1995.

7For all time relevant to this case, the by-law defined a single-family dwelling as “[a] detached residential building intended and designed to be occupied exclusively by a single family.”

8The “agreement” recited, inter alia, “[t]he parties hereby agreed [sic] that 98 Edgewater Drive AKA Assessor’s Plat 2 Lot 48 is eligible for a building permit,” and “[t]he parties further agree to waive any and all legal actions and agree that no costs or fees shall be awarded to either parties [sic].”

9In reaching this conclusion, we obviate the need to decide whether Roland, by arguing the rule of Gallivan for the first time in this court, waived the argument by depriving the trial judge of the opportunity to consider the question of the adequacy of the Cornells’ notice and resolve it after making “findings of relevant facts and appropriate rulings of law.” Gallivan, supra at 858. We note the typical rule that waiver applies when resolution of the late-raised argument requires “an adequate record and findings concerning a claim to permit [the appellate court] to resolve that claim properly.” R.W. Granger & Sons, Inc. v. J & S Insulation, Inc., 435 Mass. 66, 74 (2001).

10Because Roland did not raise below the timeliness of the Cornells’ appeal, the judge did not consider it and, accordingly, did not rest his decision on this ground. We may, however, “affirm a judgment as long as the result is correct on any ground apparent on the record that supports the result reached by the trial court.” Colony of Wellfleet, Inc. v. Harris, 71 Mass. App. Ct. 522, 529 (2008), citing to Gabbidon v. King, 414 Mass. 685, 686 (1993).

11Although Rivet also was not formally a party to the prior Superior Court litigation, the record unambiguously demonstrates his awareness of the judgment.

12The record discloses that Rivet knew, even prior to the 2000 Superior Court judgment, that he could not issue a building permit for historic lot 48. He had notice of no fewer than five opinion letters from the town’s outside counsel, Kopelman and Paige, P.C., stating that historic lot 48 was ineligible for special permits or the building permit he purportedly issued in 2005.

13We pointedly do not hold that a permit that may conflict with a provision of the by-law is similarly void. Our decision is limited to cases where, as here, the permit is issued in violation of a final judgment of a court of the Commonwealth.

14Because we decide that the void permit is not an “order or decision,” we need not reach the issue whether a void permit could convey “adequate notice” of such an “order or decision.” See Gallivan, supra at 858 (“In other instances, disputes [with respect to sufficient notice] will have to be resolved by findings of relevant facts and appropriate rulings of law. We do not purport to suggest [in this case] what does or does not constitute adequate notice for the purpose”). We note that, despite not being parties to the 2000 Superior Court judgment, the record clearly demonstrates that the Cornells had been identified as potential trial witnesses, attended the trial, knew of the outcome, and had possession of a copy of the judge’s decision.

15Although the Cornells’ counsel directed this correspondence to the town administrator, Rivet was copied on the letter and admitted to receiving it.

16Although the Cornells also own a nonconforming lot, this fact does not negate their standing for zoning act purposes. Tsagronis v. Board of Appeals of Wareham, 33 Mass. App. Ct. 55, 59 (1992).

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Civil action commenced in the Land Court Department on September 5, 2008.

The case was heard by Gordon H. Piper, J., on a motion for summary judgment.

Brian S. Kaplan for the plaintiffs.

Diane C. Tillotson for Donald Kline & another.

E. James Veara for board of appeals of Truro.

GRAINGER, J. The board of appeals (board) of the town of Truro (town) issued a building permit to the codefendant Donald Kline for work on his property at 25-27 Stephens Way (Kline property or property). The plaintiffs, direct abutters or abutters once removed, sought judicial review under G. L. c. 40A, § 17. A judge of the LandCourtconcluded that the town’s building commissioner erred in determining that the project would not increase the existing nonconforming nature of the property, and that the board consequently erred in upholding that determination.

Background. The facts are undisputed. The property comprises 9.11 acres located in a residential district in the town in which the minimum lot size is 33,750 square feet (or roughly three-quarters of one acre) and the minimum frontage is 150 feet on a street of at least forty feet in width. An owner of conforming property is permitted a single family residence and a “habitable studio” as that term is defined in the town’s zoning by-law.3

For many years the property contained a small house of roughly 1,970 square feet, predating the present dimensional requirements. That house qualified as a preexisting nonconforming structure because the land fronted on a street of inadequate width, found by the judge to vary between nine and twelve feet rather than the required forty. Kline’s goal was to transform the existing house into a “habitable studio” by removing the kitchen from that structure, and to construct a new 6,800 square foot residence some 200 feet from the site of the original house. We address the issues in the same order as the judge in his comprehensive memorandum of decision on the defendants’ motion for summary judgment.

Standing. The judge found that the plaintiffs have standing because the defendants failed to proffer any evidence that would rebut the presumption of aggrievement. We agree. The plaintiffs alleged in their complaint that the project would “increase traffic and exacerbate the unsafe conditions on Stephens Way, interfere with the ability of emergency vehicles to access the plaintiffs’ properties, and interfere with the [e]asement that the plaintiffs have over the Kline Property and rely upon for safe access to their properties.” Despite the fact that the property relies for access on a road that is deficient in width under the town’s zoning code, and was alleged to be deficient in quality by the plaintiffs whose properties are located on the same road beyond the Kline property, the defendants offered no evidence that the project would not adversely affect traffic on what the judge described as “this constrained, narrow, twisting road over which the [p]laintiffs need to pass.”

Standing is a prerequisite for judicial review. Accordingly the defendants might still challenge the judge’s finding, based as it is on the defendants’ failure to rebut the presumption in favor of aggrievement established by the plaintiffs. We therefore also consider the judge’s conclusion that the plaintiffs cannot base a claim of aggrievement on impairment of view. The judge correctly noted that a zoning by-law can create a protected interest in views from a landowner’s property. See Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, 434 Mass. 141, 146-147 (2001). In this case the by-law itself does not explicitly refer to views; it does however incorporate by reference the town’s local comprehensive plan4 which contains the following statement: “Long and broad vistas, sights of harmonious and distinctive architecture, and views of historic and culturally important sites are part of the heritage of Truro. These resources need to be cared for and preserved for the future” (emphasis added). There is no reason why a zoning by-law, like any other document, cannot incorporate material provisions by reference — rather than restating them in full — as is the case here. We note that to establish standing the plaintiffs “would need to show a particularized harm to [their] own property and a detrimental impact on the neighborhood’s visual character.” Kenner v. Zoning Bd. of Appeals of Chatham, 459 Mass. 115, 121 (2011). Accordingly, in the event that standing resurfaces as an issue in future proceedings, we note that the plaintiffs are not precluded as a matter of law from asserting aggrievement on this basis with a showing that they have suffered a harm specific to their property.

Mootness. After the case had been filed in the Land Court, Kline prepared an “approval not required” (ANR) plan which depicts the road fronting the property as forty feet in width. This plan, he asserted, rendered the case moot because the property was thereby brought into compliance. The judge correctly rejected this argument, noting that the by-law “does not cast its requirement for a road forty feet wide so it can be satisfied merely by drawing a new line on a paper plan.”5 Frontage roads must “in fact exist on the ground.” Perry v. Planning Bd. of Nantucket, 15 Mass. App. Ct. 144, 151 (1983). Even if the plan alone were deemed adequate, “[t]he Board may disapprove a plan if it determines the access road to the subdivision is inadequate.” Truro planning board subdivision regulations, § IV (f)2. See Perry, supra, 153 (board can properly disapprove a plan “because of inadequate access, despite technical compliance with frontage requirements”). Here, moreover, the regulation specifically requires a width of forty feet; it does not permit a separate overriding determination that a lesser width is permissible if it can be deemed of “sufficient width, suitable grades and adequate construction.” Compare G. L. c. 41, § 81L(c), as amended by St. 1956, c. 282. As the judge further noted, even if the ANR plan reflected reality, it would result in a nine to twelve foot wide road that temporarily balloons to forty feet while passing along the Kline property and then returns to its constricted state. This casts doubt whether it provides “adequate access to all of the lots in a subdivision,” G. L. c. 41, § 81M, added by St. 1953, c. 674, § 7, especially after the project has quadrupled the living space, and inferentially the use, of the property.

Alteration. The judge determined that the building commissioner did not abuse his discretion in determining that the “project fits the Truro definition of an ‘alteration.'” Our review of the meaning of statutory or regulatory language is de novo. Commerce Ins. Co. v. Commissioner of Ins., 447 Mass. 478, 481 (2006).

Section 10.4 of the by-law defines alteration as follows:

“Any construction, reconstruction or related action resulting in a change in the structural parts, height, number of stories, exits, size, use or location of a building or other structure or any other related change.”

We conclude that the project fails to qualify under this definition.

Our analysis begins with the fact that, considered independently, the erection of any new building requires conformity with current zoning regulations. G. L. c. 40A, § 6. A simultaneous and additional change to the property — here, removal of kitchen facilities from the original structure — does not remove this requirement by converting the new house into an alteration of the old cottage. Efforts to characterize the new house as an alteration of the original one as a consequence of removing the old cooking facilities are unpersuasive, as there is no requisite connection: an entirely new building in a different location, which is also completely different in appearance and more than four times the size of its predecessor, cannot correctly be deemed an “alteration” of the original. That conclusion is unavoidable both from the perspective of regulatory terminology and common usage.6

The by-law is broadly worded and contemplates within the definition of “alteration” almost any conceivable change, including that of location, to an existing structure. The by-law, however, is also worded in the disjunctive — and properly so. While the by-law enumerates no specific type of change that automatically defeats the claim of alteration, it does not provide license for the unlimited combination of every conceivable change to property, and all at the same time. This is in conformity with the view that the “ultimate objectives of zoning would be furthered by the eventual elimination of non-conformities in most cases.” Bransford v. Zoning Bd. of Appeals of Edgartown, 444 Mass. 852, 859 (2005),quoting from Report of the Department of Community Affairs Relative to Proposed Changes and Additions to the Zoning Enabling Act, 1972 House Doc. No. 5009 at 32, 39.

The statutory authority conferred upon the town under c. 40A provides it with the power, subject to an abuse of discretion or clear error, to determine when an alteration has — or has not –- occurred. However, the statute does not permit the town to ignore the legislative provision requiring conformity with current zoning requirementsby the simple expedient of declaring every change, and every simultaneous aggregation of changes, to be no more than an “alteration” of nonconforming property. It is axiomatic that “[a] by-law cannot conflict with the statute.” Planning Bd. of Reading v. Board of Appeals of Reading, 333 Mass. 657, 660 (1956). Here, the by-law itself is unobjectionable but, both in its interpretation and its application of the by-law, the town has strayed beyond the statutory bounds.7 Nor, in this context, can it be asserted that the by-law’s catchall phrase “any other related change” permits the unlimited combination of changes while the preceding body of the by-law does not. That phrase merely allows for the consideration of changes not explicitly listed.

Finally we note that the judge correctly recognized the magnitude of the project and multiplicity of proposed changes to the property when he determined, even while incorrectly allowing the building commissioner’s determination of “alteration” to stand, that the project undeniably signified an expansion to the property’s nonconformity.8

Conclusion. The judge’s remand to the board is affirmed for further proceedings consistent with this opinion, and specifically subject to our determination that the project does not constitute an alteration.9

2Duane P. Landreth, as trustee of the Stephens Way Nominee Trust, and the board of appeals of Truro. While there appears to be no dispute that Kline passed away before summary judgment entered, there has been no formal action to replace him as a party to the case.

3In pertinent part, § 10.4 of the by-law, entitled, “Definitions,” states: “A habitable studio shall consist of one or more bedrooms, with or without bathroom facilities, in a building detached from the principal residence, which is incidental and accessory to the principal residence and which does not include residential kitchen facilities.”

4Section 10.2 of the zoning by-law states, “The purpose of this bylaw is . . . to promote the implementation of the goals and policies of the Truro Local Comprehensive Plan.”

5Lot frontage is defined in the by-law as “[t]hat portion of a lot fronting upon and having access to a street.” By-law § 10.4. “[S]treet right-of-ways shall be 40 feet” in their minimum width. Truro planning board subdivision regulations, section IV(b). See By-law § 10.4 (defining “street” as conforming to subdivision regulations).

6“[A]lter, 1: to cause to become different in some particular characteristic . . . . without changing into something else.” Webster’s Third New Int’l Dictionary 63 (2002).

7We note that in oral argument before us the town asserted that in nineteen years, without exception, it had never determined that a change did not qualify as an alteration, and that it was within its authority in so doing. Our decision is however limited to the facts of this case.

8We note as well that the judge properly applied the holdings of Bransford v. Board of Appeals of Edgartown, 444 Mass. at 832, and Bjorklund v. Zoning Bd. of Appeals of Norwell, 450 Mass. 357 (2008), in determining that a change to the structure triggered the statute even though the existing nonconformity related to the lot (frontage). See Bransford, supra, 861 (rejecting argument that “no problem exists because [the plaintiffs’] nonconforming lot will remain exactly the same with the reconstructed residence”).

9The judge noted that “Notwithstanding the commencement of this action, Kline broke ground and commenced [the project]. On October 23, 2008, counsel for all parties appeared for a case management conference, at which I cautioned counsel for Kline that he proceeded with construction at his own risk, being fully aware of the pending challenge.”

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Scott Beres appeals from a judgment of a single justice of this court dismissing his petition to transfer to this court, pursuant to G. L. c. 211, § 4A, a civil action he had commenced in the Superior Court challenging a final decision of the Board of Registration of Chiropractors suspending his professional license.1 The single justice concluded that by statute, see G. L. c. 112, § 64, the action was required to have been timely filed in this court rather than in the Superior Court, and that she was constrained by prior decisions of this court to deny the request to transfer it here. See Hamel v. Board of Registration of Funeral Directors & Embalmers, 449 Mass. 1008, 1009 (2007); Friedman v. Board of Registration in Med. 414 Mass. 663, 666 (1993).

Nothing we said in the Hamel or Friedman case was intended to preclude a single justice’s exercise of discretion in the circumstances present here. While “[f]iling in the Supreme Judicial Court within thirty days for judicial review is a jurisdictional requirement and not susceptible to extension except in limited circumstances as provided in the statute,” Friedman v. Board of Registration in Med., supra at 666, and “[f]iling the petition incorrectly in the Superior Court, instead of the Supreme Judicial Court, will not toll the thirty-day time limit,” id. at 665, transfer of this case from the Superior Court does not require tolling of the thirty-day period. The action was commenced within thirty days, albeit in the wrong court, and remains pending there. In the Friedman case, a Superior Court judge allowed the board’s motion to dismiss for lack of subject matter jurisdiction, and there was therefore no pending action to transfer. In Hamel v. Board of Registration of Funeral Directors & Embalmers, supra, the complaint was filed in the Superior Court within thirty days, and remained pending there while this court considered whether to transfer the complaint to this court. The single justice in that case acknowledged in his memorandum of decision that he had some discretion to transfer the case under c. 211, § 4A, but he declined to do so. While Hamel, supra, does not expressly reference the discretionary nature of the single justice’s judgment, this court determined there was no error in the single justice’s decision.2

In this case, the single justice concluded she was without discretion to consider whether to transfer the action from the Superior Court. Because G. L. c. 211, § 4A, permits a single justice of this court, in the sound exercise of his or her discretion, to transfer a case timely filed in another court to this court, we vacate the judgment of the single justice, and remand for consideration whether exercise of that discretion is appropriate in the circumstances of this case. As to that, we express no opinion.

So ordered.

Sean M. Beagan for the plaintiff

Julie B. Goldman, Assistant Attorney General, for the defendant.

1A judge in the Superior Court stayed any decision on the board’s motion to dismiss for lack of subject matter jurisdiction, to permit Beres to petition for transfer to this court pursuant to G. L. c. 211, § 4A.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Indictments found and returned in the Superior Court Department on May 12, 2006.

A pretrial motion to suppress evidence was heard by Richard F. Connon, J.

An application for leave to prosecute an interlocutory appeal was allowed by Botsford, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by her to the Appeals Court. After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.

Julia K. Holler, Assistant District Attorney, for the Commonwealth.

James Silver for the defendant.

IRELAND, C.J. On January 20, 2006, the defendant, Kristian A. Chown, was stopped for speeding and then arrested for operating a motor vehicle without a license in violation of G. L. c. 90, § 10. During the subsequent inventory search of his motor vehicle, police recovered drugs, cash, and other items. As a result, the defendant was indicted for trafficking in cocaine, in violation of G. L. c. 94C, § 32E (b) (2), and possession of marijuana with intent to distribute, in violation of G. L. c. 94C, § 32C (a). The defendant moved to suppress the evidence recovered from the inventory search, contending that under the Fourth Amendment to the United States Constitution and art. 14 of the Massachusetts Declaration of Rights2 the evidence was the fruit of an unlawful arrest, the arrest being unlawful because the defendant did not need a Massachusetts driver’s license and possessed a valid Canadian driver’s license at the time of the stop. After an evidentiary hearing, a Superior Court judge agreed and allowed the motion. A single justice of this court granted the Commonwealth leave to pursue in the Appeals Court an interlocutory appeal from the judge’s order, see Mass. R. Crim. P. 15 (a) (2), as appearing in 422 Mass. 1501 (1996).3 A divided panel of the Appeals Court reversed the order of suppression. Commonwealth v. Chown, 76 Mass. App. Ct. 684, 690 (2010). We granted the defendant’s application for further appellate review. Because the arresting officer did not, in connection with the defendant’s arrest, take into account the statutory factors enumerated in G. L. c. 90, § 3 ½, for determining Massachusetts residency, and thus lacked probable cause to arrest the defendant for operating without a Massachusetts driver’s license, we affirm the order allowing the defendant’s motion to suppress.

The defendant worked part time in Hyannis as a bartender at a restaurant that was owned by his stepfather.4 During the late evening on January 20, 2006, the defendant left the restaurant parking lot in his extended cab pickup truck and was observed exceeding the posted speed limit by Sergeant Kevin J. Tynan of the Barnstable police department. Sergeant Tynan activated his overhead lights on his marked cruiser and the defendant pulled his truck into a commercial parking lot.

As Sergeant Tynan approached the truck he noticed that it had a registration plate from New Brunswick, Canada. He also observed that the rear window of the truck had been smashed, with weather stripping hanging out. As he approached the driver’s side of the truck, he recognized the driver. Sergeant Tynan had been a patron at the restaurant a few times. The defendant also was familiar to Sergeant Tynan because Sergeant Tynan had interacted with him previously, including in 2005, in response to a call made by the defendant and his then girl friend from a house owned by the defendant at 585 Old Falmouth Road in Marstons Mills.5

The defendant presented Sergeant Tynan with a New Brunswick license, listing a New Brunswick address and containing an expiration date of July 8, 2007, but could not locate and produce the truck’s registration.6 Sergeant Tynan informed the defendant that he had been stopped for speeding. Sergeant Tynan had personal prior knowledge that the defendant previously had possessed a Massachusetts driver’s license (that had expired). Sergeant Tynan inquired why the defendant did not have a Massachusetts driver’s license. The defendant replied that he planned on going to the registry of motor vehicles (registry) the next morning to obtain one.

Sergeant Tynan returned to his cruiser to run a record check with the registry, which confirmed that the defendant’s Massachusetts driver’s license had expired and revealed a lengthy history of in-State motor vehicle violations committed by the defendant, dating back to 1989, with various license suspensions and reinstatements.7 At the time of the stop, however, there were no current suspensions or revocations. Because Sergeant Tynan did not have access to Canadian registry records, he was not then able to verify the validity of the defendant’s Canadian driver’s license; the Commonwealth does not dispute that the license was valid.

Sergeant Tynan informed the defendant that he was under arrest for operating a motor vehicle without a Massachusetts license. The defendant also was charged with failing to have his registration in possession and speeding.8 Sergeant Tynan testified at the evidentiary hearing that he made the arrest because he had learned at the police academy that, “if you’re gainfully employed in the Commonwealth, residing there, have a place of address, [then] you have to get a Massachusetts driver’s license.”

Sergeant Tynan requested the assistance of another officer who, on his arrival, transported the defendant to the police station. Pursuant to the department’s written inventory policy, because of the damage to the truck’s rear window, Sergeant Tynan needed to secure the vehicle and conduct an inventory. While conducting the inventory search, he smelled a strong odor of marijuana emanating from the back seat. There, under the rear seat, he recovered a backpack that contained drugs and two scales. He also found credit cards, a check from an account in the defendant’s name with the Old Falmouth Road address, a piece of mail addressed to the defendant at the Old Falmouth Road address, and cash in the amount of $6,355. Affixed to the window of the truck, Sergeant Tynan noticed a 2002 local “dump sticker.”

In allowing the defendant’s motion to suppress, the judge noted that the defendant had produced a valid Canadian license and that, under G. L. c. 90, § 10, a nonresident may operate a motor vehicle in Massachusetts “in accordance with section three [of G. L. c. 90]” and if “duly licensed under the laws of the state or country where such vehicle is registered and has such license on his person or in the vehicle in some easily accessible place.” While § 3 of G. L. c. 90 limits the operation of a motor vehicle owned by a nonresident and registered in a different country to no “more than thirty days in the aggregate in any one year or, in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance,” the judge noted that a violation of this section results in a fine and does not give a police officer authority to arrest. In addition, the judge concluded that the defendant could not have been in violation of § 3 because the period runs “in the aggregate within a calendar year” and the arrest was made fewer than thirty days into January, 2006. The judge rejected the Commonwealth’s evidence of the defendant’s ownership of property in Massachusetts as being relevant to the determination of probable cause at the time of the arrest. The judge concluded that Sergeant Tynan lacked probable cause to believe that the defendant was a resident of Massachusetts.

The Appeals Court, by a divided panel, reversed, concluding that Sergeant Tynan was warranted in believing the defendant was a Massachusetts resident and therefore was required to have a Massachusetts driver’s license. Commonwealth v. Chown, 76 Mass. App. Ct. 684, 690 (2010). The Appeals Court reasoned that “it appears almost inescapable that the defendant was a [Massachusetts] resident [because] [f]rom the perspective of Sergeant Tynan, the defendant had lived and worked for years in Massachusetts, possessed a local driving record dating back to 1989, had at one point a Massachusetts license, drove a truck with a sticker on it for the local dump, and said he was planning on going the following day to the [r]egistry to obtain a license.” Id. Because Sergeant Tynan had probable cause to arrest the defendant, the Appeals Court determined that the evidence seized thereafter was admissible. Id. As previously noted, we granted the defendant’s application for further appellate review.

2. Discussion. As an initial matter, there is no question that Sergeant Tynan had authority to stop the defendant for speeding. See Commonwealth v. Bacon, 381 Mass. 642, 644 (1980), and cases cited (“Where the police have observed a traffic violation, they are warranted in stopping a vehicle”). What we must decide is whether Sergeant Tynan thereafter had a lawful basis to arrest the defendant. An overview of the statutory scheme is in order.

a. Statutory scheme. As relevant here, under G. L. c. 90, § 10, a “person”9 who is sixteen years of age or older is prohibited from “operat[ing] a motor vehicle upon any way [in Massachusetts]” without first obtaining a Massachusetts driver’s license. Section 10 contains several exceptions to the Massachusetts driver’s license requirement. Operation of a motor vehicle in Massachusetts without a Massachusetts driver’s license, for example, is permitted “for persons licensed in another state or country” if the person “possesses a receipt issued under [G. L. c. 90, § 8].”10 G. L. c. 90, § 10, first par. It also is permitted with respect to a “nonresident”11 subject to certain limitations as follows:

“The motor vehicle of a nonresident may be operated on the ways of the commonwealth in accordance with [G. L. c. 90, § 3,] by its owner . . . without a license from the registrar [of motor vehicles] if the nonresident operator is duly licensed under the laws of the state or country where such vehicle is registered and has such license on his person or in the vehicle in some easily accessible place. Subject to the provisions of [§ 3], a nonresident who holds a license under the laws of the state or country in which he resides may operate any motor vehicle of a type which he is licensed to operate under said license, duly registered in this commonwealth or in any state or country; provided, that he has the license on his person or in the vehicle in some easily accessible place, and that, as finally determined by the registrar, his state or country grants substantially similar privileges to residents of this commonwealth and prescribes and enforces standards of fitness for operations of motor vehicles substantially as high as those prescribed and enforced by this commonwealth.”

G. L. c. 90, § 10, first par.

General Laws c. 90, § 3, first par., provides in pertinent part:

“Subject to the provisions of [G. L. c. 90, § 3A (pertaining to the appointment of registrar as attorney for purposes of service of process),] and except as otherwise provided in this section and in [§ 10], a motor vehicle . . . owned by a non-resident who has complied with the laws relative to motor vehicles . . . and the registration and operation thereof, of the state or country of registration, may be operated on the ways of this commonwealth without registration under this chapter, to the extent, as to length of time of operation and otherwise, that, as finally determined by the registrar, the state or country grants substantially similar privileges in the case of motor vehicles . . . duly registered under the laws and owned by residents of this commonwealth; provided, that no motor vehicle . . . shall be so operated on more than thirty days in the aggregate in any one year or, in any case where the owner thereof acquires a regular place of abode or business or employment within the commonwealth, beyond a period of thirty days after the acquisition thereof, except during such time as the owner thereof maintains in full force a policy of liability insurance providing indemnity for or protection to him, and to any person responsible for the operation of such motor vehicle . . . with his express or implied consent, against loss by reason of the liability to pay damages to others for bodily injuries, including death at any time resulting therefrom, caused by such motor vehicle . . . , at least to the amount or limits required in a motor vehicle liability policy as defined in [G. L. c. 90, § 34A]” (emphasis added).

Operation of a motor vehicle in Massachusetts without a proper license is a violation of law and an arrestable offense. See G. L. c. 90, § 21, first par. (“Any officer . . . may arrest without a warrant . . . any person who, while operating a motor vehicle on any way . . . violates the provisions of the first paragraph of [G. L. c. 90, § 10]”). In addition, “[a]ny arrest made pursuant to [G. L. c. 90, § 21, first par.,] shall be deemed an arrest for the criminal offense or offenses involved and not for any civil motor vehicle infraction arising out of the same incident.” Id.

b. Basis for arrest. The Commonwealth argues that Sergeant Tynan properly arrested the defendant for driving without a Massachusetts license because, based on the facts then known to Sergeant Tynan, he had probable cause to believe that the defendant was a resident of Massachusetts and was driving without a valid Massachusetts driver’s license. “Where, as is the case here, an arrest and attendant search are made without a warrant, the Commonwealth bears the burden of establishing that the actions of the police met constitutional standards.” Commonwealth v. Santaliz, 413 Mass. 238, 240 (1992). “Both the Fourth Amendment . . . and art. 14 . . . require that an arrest upon which a search is undertaken be based on probable cause.” Id., and cases cited. “[P]robable cause exists where, at the moment of arrest, the facts and circumstances within the knowledge of the police are enough to warrant a prudent person in believing that the individual arrested has committed or was committing an offense” (emphasis added). Id. at 241, quoting Commonwealth v. Storey, 378 Mass. 312, 321 (1979), cert. denied, 446 U.S. 955 (1980). “The officers must have entertained rationally ‘more than a suspicion of criminal involvement, something definite and substantial, but not a prima facie case of the commission of a crime, let alone a case beyond a reasonable doubt.” Commonwealth v. Santaliz, supra, quoting Commonwealth v. Rivera, 27 Mass. App. Ct. 41, 45 (1989). “[A]n objective test is used to determine whether probable cause exists.” Commonwealth v. Franco, 419 Mass. 635, 639 (1995). We conclude that the Commonwealth did not satisfy its burden in this case.

By producing a Canadian driver’s license to Sergeant Tynan, the defendant, essentially, was claiming to be a “nonresident” who, subject to the provisions of G. L. c. 90, §§ 3 and 10, may lawfully operate a motor vehicle in Massachusetts without a Massachusetts driver’s license. Under G. L. c. 90, § 3 ½, however, “[a]ny person claiming to be a nonresident for purposes of [G. L. c. 90, § 3], shall be deemed to be a resident of the commonwealth” in certain circumstances. G. L. c. 90, § 3 ½ (a) (1)-(13) (listing various factors for deeming Massachusetts residency, such as whether person is registered to vote in Massachusetts; has homeowner’s liability insurance coverage on property declared to be occupied as principal residence; receives public assistance for himself or dependent child; or obtains any benefit, exemption, deduction, or privilege by claiming principal residence in Commonwealth). One of the enumerated factors must be present for a person to be “deemed” a Massachusetts resident (for purposes of G. L. c. 90). This requirement no doubt exists because the determination of residency otherwise typically is “largely a question of fact,” Rummel v. Peters, 314 Mass. 504, 517 (1943), and the statute “contemplates that a [person] may be a nonresident although he has a regular place of abode or residence here.” Id. at 513. Thus, the factors in § 3 ½ (a) (1)-(13) somewhat simplify the issue by being the only ones that are determinative. In addition, the statute requires the custodian of the records that contain the information referred to in § 3 ½ (a) (1)-(13) to provide access to that information to “a local or state police officer” “for purposes of enforcing [G. L. c. 90].” G. L. c. 90, § 3 ½ (b). As such, a legal determination of residency (for purposes of G. L. c. 90) involves some investigation and as a practical matter is not one that can be made in the field based on suspicions that do not correspond to the various residency factors enumerated in § 3 ½ (a).

Here, when Sergeant Tynan arrested the defendant, although he suspected that the defendant was a resident of Massachusetts for various reasons, he had not conducted an investigation into the matter or obtained any of the relevant determinative information under and pursuant to § 3 ½.12 Consequently, Sergeant Tynan did not base his decision to arrest on information that was “definite and substantial,” Commonwealth v. Santaliz, supra, in the context of the confines of the statutory scheme, in particular, G. L. c. 90, § 3 ½, and thus, did not possess the requisite probable cause to arrest the defendant for operating without a Massachusetts driver’s license.

There is no doubt that the Legislature has limited the period of time that a nonresident (who possesses a license from another State or country) may operate a motor vehicle in Massachusetts without a Massachusetts driver’s license and without furnishing liability insurance. The requirements exist for the protection of the public.13Apger v. New York Cent. R.R., 310 Mass. 495, 497 (1941). Just as the Legislature has prohibited all resident operators of Massachusetts from operating a motor vehicle in Massachusetts without furnishing the insurance protection required under the compulsory motor vehicle insurance law, see VanDresser v. Firlings, 305 Mass. 51, 53 (1940), the Legislature has extended this public policy to require liability insurance as set forth in G. L. c. 90, § 3, of nonresidents operating in Massachusetts after a limited period of time. See Apger v. New York Cent. R.R., supra. Specifically, the Legislature has imposed two temporal limitations. First, in the absence of the requisite liability insurance, a nonresident may not operate a motor vehicle in Massachusetts for “more than thirty days in the aggregate in any one year.” G. L. c. 90, § 3, first par. Second, in the absence of the requisite liability insurance, a nonresident may not operate a motor vehicle in Massachusetts “beyond a period of thirty days after the acquisition [of]” “a regular place of abode or business or employment [in Massachusetts].” Id. See VanDresser v. Firlings, supra at 54 (phrase “period of thirty days” begins on fixed date and ends after expiration of thirty days from that date). These provisions serve to “eliminate the evil of uncompensated injuries caused to travellers by owners of automobiles who were unable to satisfy the claims of the victims of their negligence.” Apger v. New York Cent. R.R., supra at 498.

If a police officer has reason to believe that a nonresident driver is in violation of these temporal limitations, the officer may, in a routine traffic stop, request a copy of the operator’s liability policy or insurance certificate.14 An operator’s failure to produce evidence of insurance may result in the issuance of a citation or summons, but it is not an arrestable offense under G. L. c. 90, and does not provide a basis for establishing probable cause to arrest. Here, where there was not probable cause to believe that any of the factors in G. L. c. 90, § 3 ½, were present to show that the driver was a Massachusetts resident, there was no basis for his arrest under G. L. c. 90, § 21 (“officer . . . may arrest without a warrant . . . any person who, while operating a motor vehicle on any way . . . violates the provisions of the first paragraph of [G. L. c. 90, § 1015]”), once the operator produced what appeared to be a valid Canadian license.

We speak to one final matter. We agree with the motion judge and the dissenting opinion in Commonwealth v. Chown, 76 Mass. App. Ct. 684, 693-695 (2010) (Trainor, J., dissenting), that Commonwealth v. Caceres, 413 Mass. 749 (1992), is not instructive here. In that case, an inventory search of a vehicle was challenged by the defendant who had been the driver. Id. at 750. The defendant did not contest the lawfulness of the stop or of his arrest (he had given the State trooper who stopped him a false name in violation of G. L. c. 90, § 25). Id. We rejected the defendant’s claim that the circumstances did not justify seizing his vehicle and conducting an inventory search. Id. In so doing, we stated that “the evidence justified a reasonable conclusion that the passenger [who produced a driver’s license from Puerto Rico] was not authorized to operate a motor vehicle in Massachusetts [and that] there was no alternative but to seize the vehicle and to conduct an inventory search.” Id. at 752. We explained that the passenger was not authorized to operate the vehicle because of “uncontroverted evidence” that warranted “an objectively reasonable belief that [the passenger] had been in the continental United States for three years and . . . did not . . . have a license to operate other than the Puerto Rico license.” Id. at 753. In this case, there was no such “uncontroverted evidence” that, at the time of his arrest in January, 2006, the defendant had been in Massachusetts for three years. Just prior to being arrested the defendant had produced what appeared to be a valid, and recently acquired, Canadian driver’s license showing a New Brunswick address, and at the evidentiary hearing on his motion to suppress the defendant maintained that, at the time of his arrest, he was a resident of New Brunswick, Canada.

3. Conclusion. The order allowing the defendant’s motion to suppress is affirmed.

So ordered.

1 Justice Cowin participated in the deliberation on this case prior to her retirement.

2 In his motion to suppress, the defendant did not argue that art. 14 of the Massachusetts Declaration of Rights affords him any greater protection than the Fourth Amendment to the United States Constitution.

3 The trial was stayed pending resolution of the interlocutory appeal.

5 The defendant did not dispute that he owns another home in Marstons Mills, would sometimes stay there as well as at his mother’s house in South Yarmouth, and used his mother’s address in connection with obtaining a Social Security card. At the evidentiary hearing on the motion, he testified that, at the time of the arrest in January, 2006, he legally resided in New Brunswick, Canada, and went back and forth from Canada to Massachusetts to help take care of his sick grandfather, and that when he was in Massachusetts, he slept at his mother’s house in South Yarmouth. He further testified that he rented his properties in Massachusetts.

6 In a brief filed after the evidentiary hearing on the motion to suppress, the defendant stated that it was “undisputed” that his truck was validly registered and insured in Canada. Although the Commonwealth did not contest these facts, there was no evidence of these facts submitted at the evidentiary hearing.

7 The judge indicated that he only would consider the defendant’s driving history in Massachusetts in the context of whether the defendant had been a resident of Massachusetts beyond thirty days.

8 There is no dispute that these two infractions do not amount to arrestable offenses.

9 The term “[p]ersons” means “wherever used in connection with the registration of a motor vehicle, all persons who own or control such vehicles as owners, or for the purpose of sale, or for renting, as agents, salesmen or otherwise.” G. L. c. 90, § 1.

11 The term “[n]on-resident” means “any person whose legal residence is not within the commonwealth.” G. L. c. 90, § 1. General Laws c. 90, § 3 ½, lists various factors that, if present, require a person to be “deemed” a resident of the Commonwealth for purposes of G. L. c. 90.

12 At the time of the defendant’s arrest Sergeant Tynan had knowledge that the defendant worked nearby. This factor alone is not one enumerated in G. L. c. 90, § 3 ½. In addition, while Sergeant Tynan had information that the defendant was living in Massachusetts, this factor also is not one enumerated in § 3 ½. Rather, § 3 ½ speaks of occupying real estate in Massachusetts “as a principal residence.” Last, although obtaining a “license . . . by claiming principal residence in the commonwealth” is a factor in determining residency, id., the defendant’s prior Massachusetts driver’s license had long expired at the time of the arrest and thus bore no relevance to his legal residency in January, 2006. The defendant’s statement to Sergeant Tynan of his intention to obtain a Massachusetts driver’s license likewise adds nothing of relevance and may have been made to appease the sergeant or to end the confrontation.

13 We note also that, for a nonresident lawfully to operate a motor vehicle in Massachusetts without a Massachusetts driver’s license, “his state or country [must] grant[] substantially similar privileges to residents of this commonwealth.” G. L. c. 90, § 10.

14 Sergeant Tynan considered the defendant to be a resident, not a nonresident, so production of these materials would not have made any difference to Sergeant Tynan. Because the Commonwealth does not contest the validity of the defendant’s registration and insurance, and the nature or extent of reciprocal privileges granted by New Brunswick, Canada, to motorists of Massachusetts, the defendant’s operation of his truck in Massachusetts beyond the temporal limits set forth in G. L. c. 90, § 3, was not shown to be unlawful.

15 General Laws c. 90, § 10, first par., provides that a “motor vehicle of a nonresident may be operated on the ways of the commonwealth . . . by its owner . . . if the nonresident operator is duly licensed under the laws of the state or country where such vehicle is registered and has such license on his person or in the vehicle in some easily accessible place.”

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Complaint received and sworn to in the Cambridge Division of the District Court Department on September 2, 2008.

A pretrial motion to suppress evidence was heard by Severlin B. Singleton, J. and the case was tried before Michele B. Hogan, J.

Barbara A. Munro for the defendant.

Samir Zaganjori, Assistant District Attorney, for the Commonwealth.

CARHART, J. The defendant, Felton Dyous, appeals from his conviction of larceny under $250, G. L. c. 266, § 30(1).1 On appeal, he argues that the identification procedure was unnecessarily suggestive, and therefore the motion judge erred in denying his motion to suppress. The defendant also argues that the trial judge erred by failing to grant his motion for a required finding, and that her response to a jury question was erroneous. Finally, the defendant argues that the trial judge erred by failing to conduct a voir dire hearing after she was informed that a juror may have been sleeping during the trial. Because we conclude that the trial judge should have conducted a hearing in order to determine whether the juror in question had indeed been sleeping, we reverse.

Background. 1. Facts. The jury could have found the following facts. On August 17, 2008, Charles Overy, together with a friend, Edward Landis, stopped at an automated teller machine (ATM) in Central Square in Cambridge. Overy went into the ATM vestibule and used the ATM. After using the ATM, Overy realized that he had left his ATM card in the machine. When he returned to the ATM vestibule, he encountered the defendant, who had entered the ATM area after Overy, and now had possession of Overy’s ATM card and cash. Overy demanded that the defendant return the card and money. The defendant returned the card and money, some $200. Upon surrendering the money, the defendant asked whether he could keep “at least . . . a twenty.” Landis and Overy refused. When Landis attempted to restrain the defendant and call the police, the defendant brandished a knife towards Landis and then fled on a bicycle.

2. The identification. Detective Mark Clavette of the Cambridge police department was the only witness to testify at the motion to suppress hearing, held on June 12, 2009. The motion judge made the following findings.2 Landis reported the incident to the police, and a description of the perpetrator was broadcast on the Cambridge police frequency. Another officer who had been in the Central Square area informed Clavette that he had seen Dyous just before the police broadcast, and that Dyous’s clothing and appearance fit the description of the person who had been involved in the ATM incident. Dyous was known to Clavette, who thought that the description on the broadcast fit Dyous. Armed with this information, Clavette arranged for Overy and Landis to view photographic arrays in order to determine whether they could identify the man involved in the ATM incident. On August 20, 2008, Overy was shown one photographic array. Although Dyous’s photograph was included in the array, Overy selected another individual as the man involved in the ATM incident. On August 26, 2008, Clavette showed another photographic array to Overy. Again, although Dyous’s photograph was included in the array, Overy selected yet another individual as the man involved in the ATM incident. On August 26, 2008, Clavette showed a photographic array to Landis. Landis identified three different individuals from the photographic array as his possible assailant. One of those three individuals was Dyous. Landis told Clavette that he could do a better job identifying his assailant if he saw him in person.

Three days later, on August 29, 2008, Clavette, on duty on another assignment, saw the defendant on a bicycle in the Central Square area. Clavette telephoned Landis and asked him to meet him in Central Square. Clavette gave no other information to Landis. Shortly thereafter Landis and his wife arrived in Central Square on their bicycles. Clavette asked Landis to ride his bicycle down Harvard Street in order to determine if his assailant was in the area. They made arrangements to meet a short distance from that area. After a few minutes, Landis arrived at the prearranged location where Clavette was waiting. Almost simultaneously, the defendant came into view. During his ride down Harvard Street, Landis had recognized the defendant as his assailant, and when the defendant was approximately ten feet from Landis and Clavette, Landis pointed to the defendant and identified him as the assailant at the ATM incident. While traveling down Harvard Street, Landis had observed three other people besides the defendant on Harvard Street.

As a result of Landis’s identification of the defendant as his assailant, Clavette arrested the defendant and advised him of his Miranda rights. The defendant told Clavette that he understood his rights and then admitted that he had been involved in the ATM incident, but denied using a knife.

Discussion. Because we conclude that the failure to conduct a voir dire of a juror who may have been sleeping warrants reversal (see discussion in part 3, infra), we first deal briefly with the other issues raised by the defendant.

1. Motion to suppress. The defendant argues that his identification by Landis was the product of an impermissibly suggestive identification procedure. While the procedure employed in this case is not without a danger of unnecessarily suggestive identification, we conclude that in the context of the facts of this case, the identification of the defendant by Landis was constitutionally sound.

When a defendant challenges an identification procedure, he has the burden of showing, by a preponderance of the evidence, that the identification was unnecessarily suggestive. Commonwealth v. Johnson, 420 Mass. 458, 463 (1995). One-on-one identifications are disfavored because they are viewed as inherently suggestive. Id. at 461. In this case, however, there was no one-on-one identification. Rather, Landis was told to ride his bicycle down a street in order to determine whether his assailant was in the area. This procedure did not result in a one-on-one confrontation akin to a “showup” identification. The defendant has failed to show, by a preponderance of the evidence, that the identification was unnecessarily suggestive. See Commonwealth v. Martin, 447 Mass. 274, 279-280 (2006), quoting from Commonwealth v. Odware, 429 Mass. 231, 235 (1999) (“It is the defendant’s burden to prove by a preponderance of the evidence that the showup was ‘so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny [him] due process of law'”).

2. Motion for required finding. Two witnesses, Clavette and Landis, testified at the trial. The defendant offered no evidence. At the conclusion of the evidence, the defendant moved for a required finding. The motion was denied. Because the Commonwealth had provided sufficient evidence to withstand such a motion, the judge’s ruling thereon was correct. Analyzing the evidence in the light most favorable to the Commonwealth, as is appropriate when considering a motion for a required finding, Commonwealth v. Latimore, 378 Mass. 671, 676-677 (1979), we conclude that the Commonwealth met its burden. The defendant argues that the evidence did not support the elements of larceny and that neither asportation nor the intent to permanently deprive the owner of his property was proven. While these two elements are necessary in a prosecution for larceny, both elements may be proven by circumstantial evidence. The defendant’s control of the ATM card and the cash satisfied the asportation element, even though the control of the objects was for a short time. The defendant’s state of mind as to his intent to permanently deprive was a question of fact to be determined by the jury.

3. Sleeping juror. During the charge conference, prior to closing arguments, the prosecutor alerted the judge that a juror had been sleeping. The following discussion took place.

Prosecutor: “The only thing I would point out, Judge, just bring to the Court’s attention, I don’t know how significant it is, I noticed the juror to my right has been sleeping quite a bit . . . . I don’t know, I just bring it to the Court’s attention. I don’t know if you want to make him the alternate or something, I just raise the issue.”

Thecourt: “Yeah, I don’t know if they were sleeping or keeping their eyes down. Couldn’t tell.”

Prosecutor: “I couldn’t tell. I couldn’t tell.”

Thecourt: “Yeah.”

Prosecutor: “It looked like he was sleeping a couple of times.”

Thecourt: “Yeah. If it’s by agreement, I’m happy to name him as an alternate.”

Defensecounsel: “No, it’s not by agreement.”

Thecourt: “I didn’t see. I couldn’t make a determination myself.”

Prosecutor: “I thought he was, but . . .”

Thecourt: “Could you?”

Clerk: “Short naps . . .”

Thecourt: “Short naps?”

Prosecutor: “Yeah, cat naps.”

Clerk: “They were quick. They weren’t . . .”

Thecourt: “Cat naps? I personally, I didn’t observe him actually sleeping. So I’m not going to do anything.”

A fundamental right enjoyed by all citizens is the right to trial before an impartial jury. Commonwealth v. Keaton, 36 Mass. App. Ct. 81, 87 (1994). Inherent in that right is the requirement that an impartial juror must also be attentive. If the judge observes that a juror is sleeping, or if reliable information to that effect is brought to the judge’s attention, then the judge is required to take action that will preserve the defendant’s and the public’s right to an impartial, attentive juror. Commonwealth v. Dancy, 75 Mass. App. Ct. 175, 181 (2009). The judge has discretion in dealing with the issue, dependent upon the facts as presented to him or her. Commonwealth v. Beneche, 458 Mass. 61, 78 (2010). If, however, there is a question whether the juror was indeed asleep, i.e., that the juror’s inattention was more than a momentary nodding off, then the trial judge has an obligation to conduct a voir dire in order to determine whether the juror is capable of rendering his or her verdict based upon all the evidence. Commonwealth v. Dancy, supra at 180, citing Commonwealth v. Braun, 74 Mass. App. Ct. 904, 905 (2009). Here, there was an ample basis for believing that one of the jurors was asleep during the trial. The statement of the prosecutor alerting the judge to the problem noted that the juror “has been sleeping quite a bit . . . .”3 The colloquy that followed raises a real doubt as to whether the juror was attentive during the trial. This, coupled with the fact that the entire trial consisted of two witnesses, leads us to conclude that the defendant’s right to an impartial, attentive juror may have been compromised.4 A sensitive voir dire hearing may well have answered the open question in this case — was the juror indeed sleeping? Based on the record before us, we are left with serious doubts that the juror was attentive throughout the trial. Because there was no voir dire hearing and there were no findings establishing that the juror had been attentive and was capable of rendering a verdict based on all of the evidence, the defendant is entitled to the benefit of the doubt as to the juror’s attentiveness and is therefore entitled to a new trial.5

Judgment reversed.

Verdict set aside.

1The defendant was acquitted of the crimes of assault by means of a dangerous weapon and intimidation of a witness.

2At the argument of this case the record did not include the motion judge’s findings. Subsequently, we received and reviewed his findings, which were filed on November 26, 2010.

3The prosecutor is to be commended for bringing this issue to the judge’s attention.

4The trial judge’s statement that she did not personally observe the juror sleeping and that therefore she would take no action was an insufficient basis for resolving the issue. See Commonwealth v. Braun, 74 Mass. App. Ct. at 904-905.

5Given the result we reach, we need not address the defendant’s argument that the trial judge erred in responding to a question from the jury.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

SJC-10772

CARE AND PROTECTION OF ISABELLE.

April 28, 2011.

Supreme Judicial Court, Superintendence of inferior courts. Parent and Child, Care and protection of minor. Minor, Care and protection. Due Process of Law, Care and protection of minor.

The mother of a child who is the subject of a care and protection proceeding in the Juvenile Court appeals from a judgment of a single justice of this court denying her petition for relief under G. L. c. 211, § 3. She seeks relief from an order placing the child in the temporary custody of the Department of Children and Families (department), following a so-called seventy-two hour hearing. G. L. c. 119, § 24. We affirm the single justice’s judgment.

Relief pursuant to G. L. c. 211, § 3, is extraordinary. “We exercise our general superintendence power under G. L. c. 211, § 3, in exceptional circumstances only. We exercise the power ‘sparingly,’ Care & Protection of Sophie, 449 Mass. 100, 103 (2007), and only when the party seeking relief demonstrates both ‘error that cannot be remedied under the ordinary review process’ and a ‘substantial claim of violation of [her] substantive rights.’ Planned Parenthood League of Mass., Inc. v. Operation Rescue, 406 Mass. 701, 706 (1990), quoting Dunbrack v. Commonwealth, 398 Mass. 502, 504 (1986).” Care & Protection of Zita, 455 Mass. 272, 277-278 (2009). We will not disturb the single justice’s denial of relief absent an abuse of discretion or other clear error of law. E.g., Matthews v. Appeals Court, 444 Mass. 1007, 1008 (2005). As to the first requirement, the mother filed a memorandum and appendix, as required by S.J.C. Rule 2:21, as amended, 434 Mass. 1301 (2001), “set[ting] forth the reasons why review of the trial court decision cannot adequately be obtained on appeal from any final adverse judgment in the trial court or by other available means.” We allowed the appeal to proceed because the single, limited concern of the rule — the absence of an adequate alternative remedy — had been satisfied: although appellate review of the judge’s order may be available in the ordinary course, the delay potentially could render this remedy inadequate in a case involving care and protection of a child. See Care & Protection of Sophie, supra at 104. At the same time, because “not every interlocutory ruling made in the course of a temporary custody hearing provides ground for review under G. L. c. 211, § 3,” Care & Protection of Zita, supra at 278, and because G. L. c. 211, § 3, does not serve as a vehicle for appealing as a matter of right from the merits of every seventy-two hour ruling, we advised the mother that it would “be incumbent on [her] . . . to demonstrate in her appellate brief that her claims are suitable for consideration under G. L. c. 211, § 3.” We further advised her that “it [would] not be enough . . . simply to reargue in her appellate brief the points she argued to the single justice; she must demonstrate that the single justice abused his discretion or otherwise erred in declining to employ the court’s extraordinary power of general superintendence to grant relief in these circumstances.”

The mother’s brief focuses on asserted errors and abuses of discretion committed by the judge in the Juvenile Court, rather than on the decision appealed from, namely, the single justice’s denial of relief. Only cursory attention is given to the question whether the issues compelled the single justice to act under G. L. c. 211, § 3. Merely arguing that there was error in the trial court does not suffice to demonstrate that the single justice erred or abused his discretion by declining to exercise this court’s extraordinary power of general superintendence. It is one thing to establish that this court has the power to correct an asserted error in the trial court; it is another to argue that a particular case compels the exercise of that extraordinary power, and that a single justice therefore erred or abused his discretion in declining to employ that power.

We shall briefly address the merits of the mother’s claims. She argues that, because she herself was a child in the department’s custody,1 the judge should have applied heightened scrutiny to the department’s claim that it “made reasonable efforts . . . to prevent or eliminate the need for removal from the home.”2 G. L. c. 119, § 29C. She argues that, under principles articulated in Mathews v. Eldridge, 424 U.S. 319 (1976), and its progeny, due process required that the judge make specific subsidiary findings about the department’s efforts to provide services to her before it removed the child from her care. This argument was not raised in the Juvenile Court. Moreover, the judge’s findings clearly support her determination that the department made reasonable efforts to prevent removal of the child. The department placed the mother in two successive foster homes, each chosen to help the mother learn better parenting skills. Those efforts apparently proved unsuccessful because the mother was unable or unwilling to follow the guidance given to her by the foster parents and to use suitable parenting techniques consistently. The record reveals no reason to believe that at this preliminary stage, a third placement would have been more successful or that the department could have provided any other services that would have improved the mother’s parenting skills.

The mother also argues that the judge wrongly found that the child was suffering from serious abuse or neglect in the mother’s custody. The finding that the mother slapped the child out of anger or frustration was supported by the evidence at the hearing, as was the finding that the mother’s conduct revealed a pattern of improvement followed by decline and deterioration to verbal and emotional abuse. The judge did not clearly err in these findings, particularly where this was a preliminary hearing to determine the temporary placement of the child, not a final determination permanently removing the child from the mother’s custody. In sum, the mother has made no showing that this issue warrants the exercise of our superintendence power by demonstrating, for example, that her claim is “significant not only for these parties, but also because our resolution . . . will provide needed guidance for future cases as well,” or that her claim presents “a matter of systemic importance.” Care & Protection of Zita, supra at 278-279. In all the circumstances, the single justice did not abuse his discretion or commit an error of law by denying extraordinary relief.

Judgment affirmed.

Andrew Don for the mother.

Richard A. Salcedo for the Department of Children and Families.

Lisa M. Sheehan, Committee for Public Counsel Services, for the child.

1The mother has since reached her eighteenth birthday, and she is no longer in the department’s custody. Contrary to the child’s argument, these circumstances do not moot any aspect of this case, as the mother still has an interest in regaining custody of her child.

2While G. L. c. 119, § 29C, requires that the judge “determine whether the department . . . has made [such] reasonable efforts,” it also provides that “[a] determination by the court that reasonable efforts were not made shall not preclude the court from making any appropriate order conducive to the child’s best interest.” Based on this language, even if the department had not made reasonable efforts to prevent removal of the child, the judge would not have been precluded from placing the child in the department’s custody.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

The defendant appeals from an order of a judge of the Boston Municipal Court revoking his probation on the ground that he violated one of the probation conditions imposed upon him, i.e., “no excessive use of alcohol.” While there is force to the defendant’s position that this condition is too vague to give fair warning of conduct that may result in the revocation of probation, see Commonwealth v. Kendrick, 446 Mass. 72, 75 (2006), we nevertheless conclude that on the facts of this case the judge was entitled to find by a preponderance of the evidence, see Commonwealth v. Wilcox, 446 Mass. 61, 65 (2006), that, under any fair understanding of the condition, the defendant was in violation.

At the probation revocation hearing, one probation officer, Cahill, testified for a second probation officer, Jaeger,1 that the defendant arrived at her office early in the morning of November 24, 2009, a day after he was scheduled to report (having realized that he had missed his appointment), emitting the “strong” scent of alcohol. On a previous occasion, October 16, 2009, the defendant had reported to Jaeger smelling of alcohol, and, when questioned about his alcohol use, admitted that he had consumed a few drinks the night before, but denied getting intoxicated. Despite being warned by Jaeger at that time that he should not report to her with alcohol on his breath in the future, the defendant did so again on November 24. Thus, even though Jaeger’s admonition on October 16 did not alter the terms of the defendant’s probation, the judge reasonably could infer from this course of events that the defendant had little or no control over his consumption of alcohol, and that his apparent inability to refrain from drinking early in the morning when going to see his probation officer was indicative of “excessive use of alcohol,” however that term might be understood.

Because the judge specifically found the defendant in violation even without considering Cahill’s testimony that Jaeger administered two breathalyzer tests to the defendant on the morning of November 24, 2009, we need not consider whether the test results (readings of .188 and .192) were admissible.

We note, however, that there was no evidence (hearsay or otherwise) as to the type of breathalyzer used, its maintenance and calibration, the procedures employed by Jaeger, or her training in the use of such equipment, even though these were live issues at the hearing. The Commonwealth elicited no such evidence on direct examination of Cahill, and when questioned by defense counsel on cross-examination, Cahill had no knowledge on these topics. On the view we take of the case, we need not decide whether the foundational requirements established by G. L. c. 90, § 24K, and 501 Code Mass. Regs. §§ 2.00 et seq. (2010) apply in probation revocation hearings as they do in criminal prosecutions for driving under the influence. Nevertheless, without implying that they do, we think the judge was appropriately cautious in not relying upon the breathalyzer test results in these circumstances.

Order revoking probation

affirmed.

John H. Cushman for the defendant.

Anthony J. Dutra, Assistant District Attorney, for the Commonwealth.

1Contrary to the defendant’s position, it was not error for the judge to credit and find fully reliable Cahill’s hearsay testimony of Jaeger’s account of events. See generally Commonwealth v. Durling, 407 Mass. 108, 118 (1990).

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Complaint received and sworn to in the Chelsea Division of the District Court Department on April 28, 2008.

The case was tried before Timothy H. Gailey, J.

Anthony Rozzi for the defendant.

Eric Walz (Amy Martin, Assistant District Attorney, with him) for the Commonwealth.

BERRY, J. A District Court jury convicted the defendant of operating a motor vehicle while under the influence of alcohol (OUI), and then, in a separate bench trial, a judge found that this was the defendant’s fourth OUI offense. G. L. c. 90, § 24(1)(a)(1). On appeal, the defendant challenges the subsequent offense portion of the conviction on the grounds that (1) his confrontation rights, see Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009) (Melendez-Diaz), were violated by the introduction, at the subsequent offense trial, of Registry of Motor Vehicles (RMV) records and a probation record; and (2) there was insufficient identification evidence to connect the defendant to the prior OUI conviction on which the judge relied, of OUI as a third offense. The defendant also argues that his counsel was ineffective during the trial of the underlying OUI charge in failing to object to certain descriptions (by the prosecutor and by witnesses) of the defendant’s demeanor and status following the accident which led to the current OUI arrest, and in failing to conduct adequate redirect examination of the defendant. We affirm.

The defendant’s primary appellate challenges revolve around the admission of RMV records and of probation records of the South Boston Division of the District Court Department1 during the subsequent offense trial. By exhibit A-1, the Commonwealth moved to introduce the certified docket of a 1990 conviction from that court to prove that the defendant previously had been convicted of OUI as a third offense. See Commonwealth v. Bowden, 447 Mass. 593, 599 (2006) (“A judgment of conviction for a third offense may appropriately be relied on to establish culpability for the first two offenses”). By exhibit A-2, the Commonwealth also moved to introduce a 2008 document entitled “Certification of Probation Information and Prior OUI Offense” and signed by an officer of that court’s probation department who did not testify at trial. The probation document, among other things, indicated that a Norman A. Ellis, Jr., of a certain date of birth, address, and Social Security number, had been convicted in 1990 of OUI as a third offense. Finally, by exhibit A-6, the Commonwealth moved to enter various RMV records, whose preparers did not testify, as evidence of the defendant’s identity as the prior offender.2 The defendant did not object to the certified conviction record, but did object to the RMV record and the probation certification based on the confrontation clause of the Sixth Amendment to the United States Constitution. The trial judge admitted all three exhibits.3

We first observe the good reasons for the defendant not to have argued, below or on appeal, the admissibility of exhibit A-1, the certified conviction record. Certified court records of conviction are admissible under a hearsay exception for business records under G. L. c. 233, §§ 76,4 78. See Mass. G. Evid. § 803(6)(A),5 (8) (22) (2010). Moreover, “[b]usiness and public records are generally admissible absent confrontation . . . because — having been created for the administration of an entity’s affairs and not for the purpose of establishing or proving some fact at trial — they are not testimonial.” Melendez-Diaz, 129 S. Ct. at 2539-2540. See Commonwealth v. Shangkuan, 78 Mass. App. Ct. 827, 832 (2011). “Certified records of convictions are created to establish the fact of adjudication, so as to promote accountability to the public regarding official proceedings and public knowledge of the outcomes of those proceedings.” Commonwealth v. Weeks, 77 Mass. App. Ct. 1, 5 (2010) (certified court dockets introduced to prove prior firearm convictions were business records, were not testimonial, and were not subject to confrontation under Melendez-Diaz). See Commonwealth v. McMullin, 76 Mass. App. Ct. 904, 904 (2010). Thus the certified conviction record in this case was properly admitted absent confrontation.

1. The probation record. In contrast, there was error under Melendez-Diaz in the admission of the probation certification. This record does not qualify as a nontestimonial business record under Melendez-Diaz. Rather, this record, which was generated on June 24, 2008, has every appearance of having been prepared in anticipation of litigation — the litigation being the defendant’s criminal trial for OUI as a fourth offense, which is the subject of this appeal.6 In fact, the certification is addressed, as if it were a memorandum, to the assistant district attorney who would be the prosecutor. A record such as this, even if generated in the ordinary course of probation department business, is “prepared specifically for use at [the defendant’s] trial” and is testimonial, “[w]hether or not [it] qualif[ies] as [a] business or official record[].” Melendez-Diaz, 129 S. Ct. at 2540. See Commonwealth v. Shangkuan, 78 Mass. App. Ct. at 832.

The testimonial aspects embedded in the probation certification are discernible when it is considered that the certificate was prepared by a person who, in the writing thereof, engaged in certain deliberative decisions, and formulated evaluative statements and opinions in framing answers to the matters appearing on the pre-printed form lines of the probation certification, so that the certification could be used in litigation. For example, in this case, in response to the line inquiry on the certification about a “[p]hoto I.D. (if available),” the writer stated, “N/A”; in response to the line inquiry whether “[t]he defendant was assigned to: [a]lcohol [e]ducation [and] [t]reatment [p]rogram[s],” the writer stated, “N/A”; and in response to the line inquiry concerning the involved “[p]olice [d]epartment (if known),” the writer responded, “State.” The compilation of such information required that the writer of this document review certain other documents (which are not specified in any way), engage in a deliberative process, and enter evaluative and opinion-based responses to the various certification line inquiries. Hence, there is a testimonial component which underlies what the writer did in reviewing documents and answering questions on the probation certification form. These actions and nonactions by the writer were ones that would be subject to interrogation in cross-examination. In sum, the “Certification of Probation Information and Prior OUI Offense” implicates confrontation rights under Melendez-Diaz.7 It was error to admit the document absent an opportunity at or before trial to cross-examine the writer.

Notwithstanding the Melendez-Diaz error in the admission of exhibit A-2, the probation certification, we conclude that the introduction was harmless beyond a reasonable doubt because a certified copy of the conviction was introduced as exhibit A-1. See Commonwealth v. Vasquez, 456 Mass. 350, 355 (2010) (standard of review for preserved Melendez-Diaz error is harmlessness beyond reasonable doubt). That certified copy of the conviction shows the South Boston court conviction of OUI as a third offense. Hence, given the conforming date of birth on the certified conviction, the erroneous admission of exhibit A-2 was merely duplicative.

2. The RMV records. The defendant objected at trial to, and challenges in this appeal, the introduction of the RMV records. The contention that there was a Melendez-Diaz error in admission of these registry records, which list motor vehicle registration history, is unavailing. The registration records are kept in the ordinary course of the business of the RMV and were admissible as business records and as summaries of records regularly maintained by the registry of motor vehicles.8 See Commonwealth v. Martinez-Guzman, 76 Mass. App. Ct. 167, 171 n.3 (2010) (noting that defendant’s challenge to RMV records had not been preserved, but reasoning that, “[i]n any event, this claim is without merit where it is clear that the RMV is an independent agency of State government charged with keeping complete records on the status of drivers’ licenses and ‘a record of all convictions of persons charged with violations of the laws relating to motor vehicles.’ G. L. c. 90, § 30, as amended by St. 1990, c. 256, § 5. Unlike the certificates at issue in Melendez-Diaz, which are created solely to prove an element of the prosecution’s case, RMV records are maintained independent of any prosecutorial purpose and are therefore admissible in evidence as ordinary business records under G. L. c. 233, § 78, as well as pursuant to G. L. c. 233, § 76″). Accord Commonwealth v. McMullin, 76 Mass. App. Ct. at 904 (RMV records introduced in OUI prosecution do not violate confrontation rights under Melendez-Diaz).

3. Identification evidence. On appeal, the defendant contends that there was inadequate biographical and informational data to establish the defendant’s identity with respect to the prior conviction of OUI as a third offense.9 We reject the defendant’s challenge to the sufficiency of the evidence.

Officer Goodwin, who booked the defendant on April 26, 2008, testified that during booking, the defendant stated his name was Norman A. Ellis, with a date of birth of April 5, 1950, and address of 444 Harrison Avenue, Boston. The OUI third offense conviction record from the South Boston court (exhibit A-1) confirms the defendant’s date of birth as April 5, 1950. The RMV records (exhibit A-6) corroborate the identifying information which Officer Goodwin provided. The RMV records list the defendant’s name as Norman A. Ellis, with a date of birth of April 5, 1950, and address of 444 Harrison Avenue, Boston. Compare Commonwealth v. Bowden, 447 Mass. at 595-596, 602, where similar identifying information was found sufficient.

4. Ineffective assistance of counsel. The defendant’s argument that trial counsel’s failure to object to the phrases “field sobriety test,” “nodding off,” and “odor of . . . alcohol[]” (and the like) lacks merit. None of the terms was subject to exclusion, and objection would have been futile. See Commonwealth v. Carroll, 439 Mass. 547, 557 (2003). The claim that trial counsel failed to adequately question the defendant on redirect examination regarding his inability to perform the “nine-step walk and turn” field sobriety test is equally unavailing.

Judgment affirmed.

1 Now the South Boston Division of the Boston Municipal Court Department. See G. L. c. 218, § 1, as appearing in St. 2003, c. 45, § 1.

2 These motor vehicle registration records made no references to prior OUI convictions. They merely contained information that a certain motor vehicle registration number was assigned to one Norman A. Ellis, having a certain address and date of birth.

3 The Commonwealth also introduced certified convictions of prior OUI offenses from the West Roxbury and Hingham Divisions of the District Court Department. Because the judge relied on the South Boston third offense conviction and probation record, we address those particular records.

4 General Laws c. 233, § 76, as amended through St. 2008, c. 522, § 42, states as follows:

“Copies of books, papers, documents and records in any department of the commonwealth or of any city or town, authenticated by the attestation of the officer who has charge of the same, shall be competent evidence in all cases equally with the originals thereof; provided, that, except in the case of books, papers, documents and records of the department of public utilities or the department of telecommunications and cable in matters relating to common carriers, and of the registry of motor vehicles, the genuineness of the signature of such officer shall be attested by the secretary of the commonwealth under its seal or by the clerk of such city or town, as the case may be.”

5 Concerning business records, Mass. G. Evid. § 803(6)(A) (2010) states in pertinent part as follows:

“A business record shall not be inadmissible because it is hearsay or self-serving if the court finds that (i) the entry, writing, or record was made in good faith; (ii) it was made in the regular course of business; (iii) it was made before the beginning of the civil or criminal proceeding in which it is offered; and (iv) it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence, or event, or within a reasonable time thereafter.”

See the nearly identical language contained in G. L. c. 233, § 78.

6 The subject OUI offense date was April 26, 2008, and court proceedings ensued with arraignment on April 29, 2008. The probation certification was generated by a probation officer of the South Boston Division of the Boston Municipal Court Department on June 24, 2008. The trial on the charge in this case was held on September 16 and 17, 2009.

7 That such a probation certification might be prepared for ensuing litigation is reflected in G. L. c. 90, § 24(1)(c)(4), as amended by St. 2005, c. 122, § 6A:

“In any [OUI] prosecution . . . , introduction into evidence of a prior conviction . . . by . . . certified attested copies of original court papers, or certified attested copies of the defendant’s biographical and informational data from records of the department of probation, any jail or house of corrections, the department of correction, or the registry [of motor vehicles], shall be prima facie evidence that the defendant before the court had been convicted previously . . .” (emphasis added).

That a statute, here G. L. c. 90, § 24(1)(c)(4), provides for introduction of probation records at trial does not alter the constitutional analysis. On that point, another statute, G. L. c. 111, § 13, provided for the admission of certificates of drug analysis, yet the introduction of such certificates was at center in the confrontation violation in the Melendez-Diaz case. See Melendez-Diaz, 129 S. Ct. at 2531.

“The contents of voluminous writings or records which cannot conveniently by examined in court may be presented in the form of a summary, chart, or the like, which accurately reflects the contents of the underlying documents. The original, or duplicates, may be made available for examination or copying, or both, by other parties at a reasonable time and place. The court may order that they be produced in court.”

9 The defendant failed to move for a required finding at the close of evidence. Nonetheless, “findings based on legally insufficient evidence are inherently serious enough to create a substantial risk of a miscarriage of justice.” Commonwealth v. McGovern, 397 Mass. 863, 867-868 (1986). Thus, we will review the sufficiency challenge.

COMPLAINT received and sworn to in the Wrentham Division of the District Court Department on January 28, 2009.

The case was tried before Richard D. Savignano, J.

Francis M. Doran, Jr., for the defendant.

*317

Varsha Kukafka, Assistant District Attorney, for the Commonwealth.

WOLOHOJIAN, J. Responding to an abandoned 911 telephone call, [FN1] police went to 48 Forest Street in Franklin where, as they approached, they saw a scared and crying five year old girl, who was repeatedly yelling, “[N]o police.” Near her was her mother, who appeared shaken and nervous. The police entered the residence and saw an empty gun holster on the kitchen floor. At that point, the defendant entered the kitchen from the living room and the child said, “He pushed Mommy into the wall. He had a gun.” The defendant identified himself as a police officer and stated that he was unarmed. One of the responding police officers ushered him outside. Another officer, accompanied by the mother, the girl, and her seven year old brother, then went upstairs. In the hall, the officer observed a foot-wide indentation in the wall about three feet up from the floor. In the pocket of a jacket hanging in an upstairs bedroom closet, the officer located a Smith & Wesson .38 caliber handgun. The unloaded gun did not have a trigger lock and was not secured in a locked container. Also in the same pocket was hollow point .38 caliber ammunition.

The defendant was convicted after a jury trial of improper storage of a firearm, G. L. c. 140, § 131L(a) (firearm storage statute or statute). [FN2] On appeal, he (a) challenges the constitutionality of the firearm storage statute; (b) contends that there was insufficient evidence that he did not “control” the firearm for purposes of the statute; and (c) contends that admission of the child’s statement without her live testimony at trial violated his right of confrontation under the Sixth Amendment to the United States Constitution. We affirm.

*318

1. Firearm storage statute. Relying on District of Columbia v. Heller, 554 U.S. 570 (2008), the defendant argues that our firearm storage statute violates the Second Amendment to the United States Constitution. [FN3] To the extent that the defendant challenges the constitutionality of the statute on its face, his argument fails in light of Commonwealth v. Runyan, 456 Mass. 230 (2010). Runyan concluded that our firearm storage statute meaningfully and substantially differs from the statutory provision at issue in Heller because it does not require an individual “to secure or render inoperable a firearm while the individual carries it or while it remains otherwise under the individual’s control.” Runyan, supra at 236. As a result, our statute does not, on its face, unconstitutionally interfere with an individual’s ability to rely on a gun for lawful self-defense. Id. at 237.

What remains of the defendant’s Second Amendment challenge, therefore, is to determine whether any constitutional concern is raised by the statute’s application to the defendant on the facts of this case. We are confident that no such concern exists. There is nothing in the record to suggest that the statute’s requirements interfered to any degree with the defendant’s right to lawful self-defense. See Heller, supra at 628. To the contrary, the evidence showed that the defendant had stored the gun in a closet upstairs while he was downstairs without immediate access to it. The statute’s storage requirements placed no meaningful restraint on the defendant’s ability to use the gun in lawful self-defense if for no other reason than that he himself placed it where it could not be quickly reached.

2. Sufficiency of evidence of “control”. The firearm storage statute applies to weapons when they are neither carried nor under the control of their owner or other authorized user. See note 2, supra. The defendant does not contend that he was carrying the gun within the meaning of the statute at the time of the offense. [FN4] He does, however, argue that the Commonwealth failed to prove that the gun was not under his “control.” We must assess, therefore, the meaning of that term for purposes of the gun storage statute.

*319

“Control” is not defined by the statute, and we have found no case construing the term in this context. Ordinary rules of statutory construction lead to the conclusion that “control” is not synonymous with the term “carried.” Otherwise, there would have been no need for the Legislature to have used both terms in the statute. See, e.g., Kobrin v. Gastfriend, 443 Mass. 327, 332 (2005), quoting from Commonwealth v. Woods Hole, Martha’s Vineyard & Nantucket S.S. Authy., 352 Mass. 617, 618 (1967) (“[n]one of the words of a statute is to be regarded as superfluous”). “Carried” is also undefined by the statute, but at a minimum it requires actual physical possession. What else might be required is a question left for another day, although we note that in the related context of G. L. c. 269, § 10(a), “carrying” requires nontemporary physical possession together with movement. See Commonwealth v. Osborne, 5 Mass. App. Ct. 657, 658- 659 (1977).

While a gun for purposes of the firearm storage statute need not necessarily be in the actual physical possession of its owner or authorized user in order to be under that individual’s “control,” it must be readily at hand. The statute is part of an over-all scheme of gun control legislation designed “to prevent the temptation and the ability to use firearms to inflict harm, be it negligently or intentionally, on another or on oneself.” Commonwealth v. Lee, 10 Mass. App. Ct. 518, 523 (1980). The firearm storage statute itself “is illustrative of the societal concern with weapons reaching the hands of unauthorized users.” Jupin v. Kask, 447 Mass. 141, 154 (2006). Understanding that the purpose of the statute is to guard against the use of firearms by unauthorized, incompetent, or irresponsible persons, it becomes clear that a firearm is within the “control” of its owner or authorized user only when that person has it sufficiently nearby to prevent immediately its unauthorized use. [FN5]

Of course, the determination whether a particular firearm is *320under an individual’s control will depend on the facts and circumstances of any given case. Among other things, consideration should be given to the firearm’s location, its proximity to its authorized user or owner, and that person’s ability to reach immediately the gun. It is clear to us that the Commonwealth satisfied its burden of proving beyond a reasonable doubt that the gun was not under the defendant’s control in this case. The gun was stored in the pocket of a jacket hanging in an upstairs closet. The defendant was downstairs. The gun was out of its holster, which was lying on the kitchen floor. Children were present, including a young boy who at times was closer to the gun than was the defendant. The jury had more than sufficient evidence upon which to find that the gun was not within the defendant’s control.

3. Sixth Amendment. The defendant argues that the admission of the child’s statement, “He pushed Mommy into the wall. He had a gun,” violated his right to confrontation under the Sixth Amendment. [FN6] The confrontation clause applies to witnesses who “bear testimony” against the accused, regardless of whether their statements are admissible under the rules of evidence. [FN7] Crawford v. Washington, 541 U.S. 36, 50-51 (2004). ” ‘Testimony’ . . . is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51, quoting from 2 N. Webster, An American Dictionary of the English Language (1828).

The child’s statement here was made spontaneously, without police questioning, as the officers walked into a volatile and unstable scene of domestic disturbance. There is nothing to suggest that the statement was made for any purpose other than to secure aid, let alone that the five year old child had in mind that the statement would or could be used to prove some fact at a future criminal trial. The statement, accordingly, was not testimonial for purposes of the Sixth Amendment. See Davis v. Washington, 547 U.S. 813, 822 (2006) ( “[s]tatements are nontestimonial when made in the course of police interrogation *321under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency”); Michigan v. Bryant, 131 S. Ct. 1143, 1156 (2011) (“To determine whether the ‘primary purpose’ of an interrogation is ‘to enable police assistance to meet an ongoing emergency,’ which would render the resulting statements nontestimonial, we objectively evaluate the circumstances in which the encounter occurs and the statements and actions of the parties” [citation omitted]); Commonwealth v. Gonsalves, 445 Mass. 1, 9-10 (2005), cert. denied, 548 U.S. 926 (2006) (statements are not “testimonial” if made in response to questioning “to secure a volatile scene or to establish the need for or provide medical care” [footnote omitted]).

We note further that, even assuming arguendo that the statement was testimonial, any error in its admission was harmless beyond a reasonable doubt. The defendant himself admitted to owning the gun; the child’s statement added nothing else that bore on the charge of violating the firearm storage statute. And, although the statement did bear on the crimes of assault and battery, G. L. c. 265, § 13A(a), and witness intimidation, G. L. c. 268, § 13B, the defendant was acquitted of both charges.

For the reasons set out above, the judgment is affirmed.

So ordered.

FN1 No information was conveyed before the caller hung up, and the call thus generated especial alarm.

FN2 General Laws, c. 140, § 131L(a), inserted by St. 1998, c. 180, § 47, states: “It shall be unlawful to store or keep any firearm, rifle or shotgun including, but not limited to, large capacity weapons, or machine gun in any place unless such weapon is secured in a locked container or equipped with a tamper-resistant mechanical lock or other safety device, properly engaged so as to render such weapon inoperable by any person other than the owner or other lawfully authorized user. For purposes of this section, such weapon shall not be deemed stored or kept if carried by or under the control of the owner or other lawfully authorized user.”

FN3 After this appeal was briefed, the United States Supreme Court held that the Second Amendment applies to the States. See McDonald v. Chicago, 130 S. Ct. 3020 (2010).

FN4 Nor could such an argument credibly be made on the facts of this case.

FN5 In this case, the jury were instructed that “control” for purposes of the statute could be satisfied by showing constructive possession. The judge instructed: “An object is considered to be in a person’s control or dominion, without physical custody, if they have knowledge of the object; if they have the ability to exercise control or dominion over the object . . . ; and thirdly, that they have the intent to exercise such dominion or control over the .” This instruction should not have been given, but the error was harmless, as the instruction worked to the defendant’s benefit.

FN6 The statement was introduced through a police officer; the child did not testify.

FN7 We are persuaded that the statement was admissible under the excited utterance exception to the hearsay rule.

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports. If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us

Complaint received and sworn to in the Dorchester Division of the Boston Municipal Court Department on October 19, 2007.

A pretrial motion to suppress evidence was heard by Tracy-Lee Lyons, J., and the case was tried before Robert P. Ziemian, J.

Kathryn Karczewska Ohren for the defendant.

Teresa K. Anderson, Assistant District Attorney, for the Commonwealth.

CYPHER, J. The defendant, Antwan Lawson, appeals from convictions for various drug and motor vehicle violations,1 arguing that the motion judge should have allowed his motion to suppress evidence. The defendant also raises other trial-related issues. We affirm.

The motion to suppress. “In reviewing a ruling on a motion to suppress, we accept the judge’s subsidiary findings of fact absent clear error ‘but conduct an independent review of his ultimate findings and conclusions of law.'” Commonwealth v. Scott, 440 Mass. 642, 646 (2004), quoting from Commonwealth v. Jimenez, 438 Mass. 213, 218 (2002). Where appropriate, we supplement the judge’s findings with uncontradicted and uncontroverted testimony from the record of the suppression hearing. Commonwealth v. Watson, 430 Mass. 725, 726 n.5 (2000). The motion judge fully credited the testimony of Massachusetts Bay Transportation Authority (MBTA) police officer Douglas Moran, Boston police officer Joseph Fisher, and MBTA police officer Kevin Foley2 and the facts are not in dispute. Rather, the defendant argues that the facts do not support a conclusion that the police had a requisite basis to detain the defendant for inquiry or to pat frisk him and that the police did not have probable cause to search the vehicle. “[O]ur duty is to make an independent determination of the correctness of the judge’s application of constitutional principles to the facts as found.” Commonwealth v. Mercado, 422 Mass. 367, 369 (1996).

On October 18, 2007, at approximately 9:30 P.M., Officer Morgan and his partner Officer Foley were driving along Dorchester Avenue in the Dorchester section of Boston. Officer Morgan described the area as one known for drug violations, violent crimes, and shootings. He stated that there were shootings in Wainwright Park and that he had arrested an individual for robbery on Semont Road. As Officer Morgan continued along Dorchester Avenue, he noticed a Dodge Charger automobile in a crosswalk at Semont Road. The vehicle was stopped with its lights on and its motor running. Its rear end was in the crosswalk “sticking into Dorchester Avenue.” He looked at the registration plate and remembered that it was one posted by the Boston police for field interview observation purposes in connection with a shooting that had occurred earlier in the week. The notification received by Officer Morgan indicated the type of vehicle, registration plate number, and that it was a rental vehicle.

Officer Foley parked two to three feet behind the vehicle on Dorchester Avenue. Officer Morgan exited the cruiser and walked to the driver’s side and asked the driver for his license and registration. The driver, later identified as the defendant, reached for the registration “real quick” and gave the officer a car rental agreement. Officer Morgan asked him again for his license. At this time, Officer Morgan described the defendant as nervous and observed that his hands were shaking. He also noted that the vehicle was extremely clean and reeked of air freshener. Six air fresheners were strewn about the front and back seats and the floor of the vehicle.

Officer Morgan observed a large amount of cash (approximately one inch thick) “wrapped up with credit cards and I.D.’s sitting on the center console.” The officer again asked the defendant for his license but the defendant was hesitant to retrieve it. Officer Morgan could clearly see the defendant’s identification card in plain view on the console.

The rental agreement had the name of one person, a female, with the last name Maxwell. The defendant was not authorized as a person who could drive the Dodge Charger. The defendant finally gave the officer an identification card. Officer Morgan ran the information on his mobile data terminal and learned that the defendant’s license to operate a motor vehicle had been revoked.

Officer Morgan asked the defendant to exit the vehicle and arrested him for operating a vehicle after revocation of his license and use without authority. He also gave him a traffic citation for parking in a crosswalk.

Officer Morgan was concerned for his safety because he knew that the vehicle had been identified by the Boston Police for possible involvement with a shooting, that the occupants were to be inquired of, and that the defendant had a criminal record (specifically, firearm possession, possession with intent to distribute class B and class D substances). Moreover, he observed that the defendant was nervous, his hands were shaking, and he was reluctant to produce his identification.

Describing his experience with past arrests of individuals who use or distribute narcotics, Officer Morgan stated they usually use air fresheners to try to disguise the smell of controlled substances. Officer Morgan called for assistance from a drug-sniffing canine and Officer Fisher arrived with his dog, Tiburon. The dog alerted Officer Fisher to an area in the interior lining of the roof by the windshield on the driver’s side where police recovered a bag of marijuana (later determined to weigh fifty-two grams). A one hundred dollar bill was found inside the vehicle on the floor.

At booking, fourteen sets of bundled money (totalling $1,700) were found in the defendant’s pocket. The vehicle was searched and inventoried pursuant to the Boston police inventory policy.

Discussion. Analysis of whether a defendant’s art. 14 or Fourth Amendment rights have been violated sometimes begins with a determination whether the defendant has demonstrated that there has been a “search in the constitutional sense,” in other words, whether the defendant has a reasonable expectation of privacy. See Commonwealth v. Carter, 424 Mass. 409, 411 (1997), quoting from Commonwealth v. Montanez, 410 Mass. 290, 301 (1991). See also, e.g., Commonwealth v. D’Onofrio, 396 Mass. 711, 714-715 (1986). Some cases begin with the question whether a defendant has standing to assert a reasonable expectation of privacy.3 See, e.g., Montanez, supra at 300; Commonwealth v. Morrison, 429 Mass. 511, 513 (1999). See also Minnesota v. Carter, 525 U.S. 83, 89 (1998). See generally Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 3-4[1] (2010). Standing and the question of a reasonable expectation of privacy are “interrelated” concepts but are considered separately. Commonwealth v. Williams, 453 Mass. 203, 207-208 (2009). See Commonwealth v. Frazier, 410 Mass. 235, 244 n.3 (1991) (“we think it is best to separate the issue of standing from the question whether there has been a search for constitutional purposes”).

The Commonwealth argues, for the first time, that the defendant had no expectation of privacy in the vehicle, and therefore there was no search in a constitutional sense when the officer searched the interior of the vehicle with a drug sniffing dog.

Here, because the defendant was charged with possessory offenses, the doctrine of automatic standing applies and the defendant may challenge the search. Commonwealth v. Mubdi, 456 Mass. 385, 392 (2010). However, a defendant does not have a reasonable expectation of privacy where he has no right to be in the house or automobile where the evidence is found. Id. at 393 n.8. See Commonwealth v. Carter, 424 Mass. at 411-412. The defendant thus was in the position of a trespasser.4 See id. at 412 (art. 14 of the Massachusetts Declaration of Rights “does not relieve a defendant who unlawfully intruded on someone else’s reasonable expectation of privacy from establishing that he had a reasonable expectation of privacy himself”). Moreover, “[a] defendant may not ‘assert the constitutional rights of someone in no way involved with his allegedly criminal conduct.'” Commonwealth v. Rise, 50 Mass. App. Ct. 836, 841 (2001), quoting from Commonwealth v. Carter, 424 Mass. at 411 n.3. Although the defendant may have had automatic standing, he did not have a reasonable expectation of privacy in the automobile that he was not authorized by the car rental agency to drive.5 Whether a defendant has a reasonable expectation of privacy may not be challenged for the first time on appeal by the Commonwealth, however. Commonwealth v. Rodriguez, 456 Mass. 578, 589 (2010). See Commonwealth v. Martinez, 74 Mass. App. Ct. 240, 249 (2009) (Commonwealth waived reasonable expectation of privacy argument by not raising it before motion judge). Thus, the Commonwealth waived this argument. We examine whether the Commonwealth has established that the warrantless search of the vehicle satisfied the Fourth Amendment and art. 14, and conclude that it did.

The defendant argues that there was no justification for a search for narcotics or to search the interior of the vehicle with a drug-sniffing dog. We disagree.

Here, where the defendant was unable to provide a valid driver’s license, demonstrated nervous behavior, possessed a large bundle of cash, had multiple air fresheners in the vehicle,6 and had a record of prior arrests for drug distribution, there was probable cause to search the vehicle, with or without a drug-sniffing dog.7 See Commonwealth v. Watts, 74 Mass. App. Ct. 514, 518-519 (2009). See also Commonwealth v. Cast, 407 Mass. 891, 900 (1990) (“It was in keeping with drug traffickers’ practice of using rented vehicles rather than their own, in order to protect their anonymity if the police do become suspicious and run a license check, and in order to shield the vehicles they own from seizure and impoundment”).8 Accordingly, the motion to suppress was properly denied.

Remaining issues. The defendant raises several other issues, including sufficiency of the evidence, ineffective assistance of counsel, and improper closing argument. We have considered them and conclude that the evidence is sufficient, counsel was not ineffective, and that there has been no error.

Order denying motion to

suppress affirmed.

Judgments affirmed.

1He was convicted by a Boston Municipal Court jury of (1) possession with intent to distribute marijuana (subsequent offense); (2) possession with intent to distribute near a school, G. L. c. 94C, § 32J; and (3) use of a motor vehicle without authority, G. L. c. 90, § 24(2)(a).

3“When a motion to suppress evidence is made in a criminal case on the ground that the evidence was obtained in violation of the Fourth Amendment, there may be put in issue the question whether the movant is a proper party to assert the claim of illegality and to seek the remedy of exclusion. This question is ordinarily characterized as one of whether the party has ‘standing’ to raise the Fourth Amendment contention.” 6 LaFave, Search and Seizure § 11.3 at 126 (4th ed. 2004). In other words, the party must establish “a personal stake in the outcome of the controversy.” Ibid., quoting from Baker v. Carr, 369 U.S. 186, 204 (1962).

A search in the constitutional sense exists when the defendant establishes a reasonable expectation of privacy. “The measure of the defendant’s expectation of privacy is (1) whether the defendant has manifested a subjective expectation of privacy in the object of the search, and (2) whether society is willing to recognize that expectation as reasonable.” Montanez, supra at

301.

4That the defendant’s affidavit alleged that he had the permission of the lessee to drive the automobile may establish his entitlement to a hearing but it does not constitute evidentiary proof. Only the rental company could authorize the defendant to drive the vehicle. “The affidavit is not evidence

and may not be considered by the judge for purposes of deciding the motion to suppress. The permissible findings of fact at the evidentiary hearing must find support in the evidence — the testimony and exhibits, which have been introduced in evidence at the suppression hearing.” Grasso & McEvoy, Suppression Matters Under Massachusetts Law § 2-3(d)(3), citing Commonwealth v. Ellerbe, 430 Mass. 769, 776, n.12 (2000).

5Mubdi states that even if a defendant has automatic standing, he “still must show that there was a search in the constitutional sense, that is, that someone had a reasonable expectation of privacy in the place searched.” Mubdi, supra at 393 (emphasis in original). However, in Commonwealth v. Carter, 424 Mass. at 411, the Supreme Judicial Court stated that whether a search in the constitutional sense has taken place “‘turns on whether the police conduct has intruded on a constitutionally protected reasonable expectation of privacy’ of the defendant,” quoting from Commonwealth v. Montanez, 410 Mass. at 301 (emphasis supplied). See Carter, supra at 410 (“We . . . consider [the defendant’s] argument that, if a defendant has automatic standing to challenge the seizure of property, the defendant need not also establish that he had a reasonable expectation of privacy in the area searched. The defendant contends that, if he has automatic standing and if someone else, anyone, had a reasonable expectation of privacy in the area searched at the time it was searched and that person’s constitutional rights were violated, the evidence must be suppressed. The defendant reads our cases too broadly”). See Commonwealth v. D’Onofrio, 396 Mass. at 714 (defendant bears burden of proving that there was a search in constitutional sense; that he had reasonable expectation of

privacy); Montanez, supra at 301 (defendant has burden to prove that there was search in constitutional sense even when defendant has automatic standing). See also Minnesota v. Carter, 525 U.S. at 88. We need not resolve the tension between these cases, however, as the defendant was not an authorized driver. Mubdi, supra at 393 n.8 (“There is an exception to automatic standing where the defendant had no right to be in the house or automobile where the evidence was found”).

6Just as “[t]he courts have found probable cause to search when the distinctive odor of marijuana is found emanating from a particular place, [also] the smell of a . . . masking agent . . . together with other suspicious circumstances, may add up to probable cause.” 2 LaFave, Search & Seizure § 3.6(b) at 311-312. See Commonwealth v. Watts, 74 Mass. App. Ct. 514, 515 (2009) (reasonable suspicion based in part on fabric softener dryer sheets). See also United States v. Gutierrez-Espinosa, 516 F.2d 249, 250 (9th Cir. 1975) (strong odor of deodorizer was relevant to defendant’s knowledge of presence of marijuana in vehicle); United States v. Reyna, 546 F.2d 103, 103 (5th Cir. 1977)

7Even if only reasonable suspicion existed, the search of the vehicle with a drug-sniffing dog was proper. See Commonwealth v. Sinforoso, 434 Mass. 320, 324 (2001) (use of narcotics-sniffing dog that entered motor vehicle for which there was reasonable suspicion of narcotics activity, was proportional and less intrusive alternative to full search of vehicle). Commonwealth v. Feyenord, 445 Mass. 72, 78-79 (2005) cert. denied, 546 U.S. 1187 (2006) (use of drug-sniffing dog proper where circumstances — that defendant was nervous, supplied inconsistent answers, and was unable to produce a valid driver’s license — provided reasonable suspicion that the defendant was involved in criminal activity). That the defendant was not authorized to use the rental car also supported use of the dog. See Commonwealth v. Watts, 74 Mass. App. Ct. at 519.

8The Commonwealth also argues that the marijuana would have been discovered at a later inventory search. See Commonwealth v. O’Connor, 406 Mass. 112, 115 (1989). The judge found that the vehicle was searched and monitored pursuant to the Boston police